Human Rights-Related Limitations on the Assessing of the Credibility of Asylum Seekers’ Declarations on their Sexual Orientation

Abstract

In November 2013, the Court of Justice ruled that homosexual asylum seekers can constitute a particular social group who may be persecuted on account of their sexual orientation. Persons subject to such persecution can therefore be granted asylum under the EU Qualification Directive. 
In December 2014, in a Dutch case, the Court examined how the national authorities can assess the credibility of asylum seekers’ declarations on their sexual
orientation. In this regard, the Court specifically underlined that applicants for asylum cannot be submitted to tests in order to demonstrate their homosexuality since such an obligation might impair these persons’ fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, such as the right to respect for human dignity and the right to respect for private life.
In a recent judgment delivered in January 2018 in a Hungarian case, the Court clarified that the tests referred to in its above mentioned ruling of 2014 comprise not only physical but also psychological tests. In addition, the Court underlined that, in a situation in which the asylum seeker’s sexual orientation is not substantiated by documentary evidence, the national authorities, should rely, in particular, on the consistency and plausibility of the statements of the person concerned.