Asylum seekers must not be subjected to psychological tests to determine whether they are homosexual, EU's top court has ruled.
Tests to determine sexual orientation are controversial, but are sometimes used when assessing asylum claims.
The European Court of Justice (ECJ) ruling is binding in all 28 EU states.
The ECJ case relates to a Nigerian man who submitted an asylum application in Hungary in April 2015. He feared persecution in Nigeria for being gay.
Hundreds of homosexuals fearing persecution in Africa, the Middle East and Chechnya have sought asylum in the EU, the EU Agency for Fundamental Rights reports.
The Nigerian's claim was rejected after a psychologist's report failed to confirm his homosexuality.
A court in Szeged, Hungary, must now reconsider his case in light of the ECJ ruling.
What about similar gay rights cases?In December 2014 the ECJ ruled on a similar case in the Netherlands and found that sexuality tests violated asylum seekers' human rights.
In the new ruling, the ECJ said "certain forms of expert reports may prove useful" in such cases, but added that such reports interfered with a person's privacy. Authorities must also determine the reliability of a claimant's statements, the judges said.
In 2013 the ECJ ruled that asylum could be granted in cases where people were actually jailed for homosexuality in their home country.
Homosexual acts are illegal in most African countries, including key Western allies such as Uganda, Nigeria, Kenya and Botswana.
What happens next in this case?The Hungarian court cannot appeal against the ECJ ruling, so the Nigerian man - identified only as "F" - now has a stronger claim for asylum.
The ruling means that EU countries now have no legal right to impose psychological tests to determine an asylum seeker's sexuality.
What did Hungary originally decide?The ECJ says Hungarian officials had not found F's statements to be fundamentally contradictory, but had still concluded that F lacked credibility.
Their decision was based on a psychologist's report, which included:
Psychologists have long held that personality traits can be revealed by tests such as "draw a person in the rain" and the Rorschach test, which relies on an individual's interpretation of inkblots.
What sort of tests were at issue here? They were quite general psychological tests, aimed at identifying F's personality type and emotional characteristics.
F said the tests had violated his fundamental rights and they had not provided any assessment of "the plausibility of his sexual orientation", the ECJ said.
It also said any indication of sexual orientation provided by such tests could only be "approximate in nature". They were "of only limited interest for the purpose of assessing the statements of an applicant for international protection".
In 2010 the EU's Fundamental Rights Agency condemned the Czech authorities for using "phallometric" sexual arousal tests on some asylum seekers to determine whether they were gay. Czech officials said the tests had been used in fewer than 10 cases, with the individuals' consent.
The Hungarian court handling F's case quoted him as saying that he had not undergone any physical examination and had not been required to view pornographic photographs or videos.
Is Hungary a special case?No - other EU countries also conduct psychological tests on asylum seekers, to assess whether their statements can be believed.
The UK Home Office has detailed guidance on asylum claims based on sexual orientation.
The gay rights group ILGA-Europe says there is a huge diversity in the EU in the way asylum authorities assess someone's sexual orientation.
In F's case tests were imposed on him - unlike the Dutch asylum case of 2014, when several Africans offered evidence of their homosexuality.
In the Dutch case, the ECJ ruled that it was wrong to conduct "detailed questioning as to the sexual practices of an applicant for asylum".
F's asylum claim in 2015 came during a migrant crisis for Hungary. The country faced a huge influx of migrants - many of them Syrians, Iraqis and Afghans fleeing war. Most of them moved to Germany, via Austria, and Hungary then built a formidable border fence to keep migrants out.
Published on BBC on January 25, 2018
By Jennifer Rankin
The European Union’s top court has dismissed complaints by Slovakia and Hungary about EU migration policy, dealing a blow to the Hungarian prime minister, Viktor Orbán, and his allies in central Europe over the bitterly contested policy of refugee quotas.
In an important victory for the EU, judges threw out a challenge against its mandatory relocation scheme, which aims to relocate 120,000 asylum seekers around the bloc.
The victory has sharpened tensions between the EU and Hungary’s combative PM, who has made opposition to EU asylum policy a core theme of his “Stop Brussels” campaign. It will also raise tensions with Poland, which lent its support to the failed legal campaign.
Budapest condemned the court ruling as “appalling and irresponsible”. The foreign minister, Péter Szijjártó, said: “This decision jeopardises the security and future of all of Europe. Politics has raped European law and values.”
The European court of justice (ECJ) said it had dismissed “in their entirety the actions brought by Slovakia and Hungary”, vindicating the EU decision-making process that created a scheme to relocate 120,000 asylum seekers from Greece and Italy to other member states.
The number was later amended when 54,000 “unused places” were allocated to resettle Syrian refugees in Turkey in Europe. Based on the original 120,000 figure, fewer than a quarter of places have been filled. With the relocation scheme due to expire later this month, the stage is set for bruising arguments over permanent refugee quotas.
EU leaders agreed the emergency plan in September 2015, at the height of the migration crisis, as thousands of people arrived daily on Europe’s shores, many of whom were refugees from Syria, Iraq and Eritrea.
Along with Hungary and Slovakia, Romania and the Czech Republic also voted against the scheme. Poland belatedly threw its weight behind the legal case after the conservative Law and Justice party came to power in late 2015.
European leaders turned to an untested provision of the EU treaty to force through the decision in an attempt to get to grips with unprecedented numbers of people arriving in the EU.
ECJ judges said the European council had acted lawfully. EU institutions were on firm legal ground when they adopted measures to respond to “an emergency situation characterised by a sudden inflow of displaced persons”, the court said. The ECJ also concluded that the legality of the decision was not affected by retrospective conclusions about the policy’s effectiveness.
In a robust defence of the EU treaties, the court said: “The small number of relocations so far carried out under the contested decision can be explained by a series of factors … including, in particular, the lack of cooperation on the part of certain member states.”
Data released on Wednesday shows that 27,695 refugees have been relocated under the scheme, roughly two-thirds from Greece and a third from Italy. Dimitris Avramopoulos, the European commissioner for migration, said there was “misunderstanding” about the numbers and fewer people than anticipated were eligible for help.
He said 2,800 people in Greece were awaiting relocation and another 2,000 were expected to become eligible. According to official data, in Italy 7,200 eligible asylum seekers have arrived since the start of the year but only 4,000 have been registered, as authorities struggle to cope with arrivals.
Hungary and Poland have not relocated a single person and the Czech Republic has not made any offers for more than a year. All three countries risk being taken to court by the commission. Avramopoulos said the commission was ready to consider that last step. “The door is still open and we should convince all member states to fulfil their commitments, but we should be clear that member states have to show solidarity now.”
The court decision came as the EU executive curtly dismissed Orbán’s request for EU funds to help build a border fence. In a letter from the European commission president, Jean-Claude Juncker, Orbán is chastised for attempting to pick and choose EU policies. “Solidarity is not an à-la-carte dish,” states the letter, first obtained by Politico.
Juncker lists the financial support Hungary has received to manage migrant flows, and the €4m Budapest lost out on by refusing to take part in the refugee relocation scheme. “Solidarity is a two-way street. There are times in which member states may expect to receive support, and times in which they, in turn, should stand ready to contribute,” he writes.
The ECJ ruling was greeted with relief in Brussels. Manfred Weber, the head of the European parliament’s largest centre-right group, tweeted: "#ECJ confirms our view on the migration scheme. We expect all EU countries to respect and implement the ruling. @EPPGroup 1/3"
There was a predictable reaction from anti-EU parties. The former Ukip leader Nigel Farage said: “What a surprise – EU court undermines national sovereignty once again. It should be a decision of nation states who it allows inside its borders.”
The EU has taken in more than 1.7 million people from the Middle East and Africa since 2014. However, after a mass influx in 2015, the number of arrivals has fallen steadily after actions last year that all but closed the route from Turkey to Greece and from Greece to the Balkans and northern Europe. The EU has also increased support for Libya to curb arrivals in Italy.
The ruling has no impact on the UK, which has an opt-out from this area of EU law.
Published on The Guardian on September 6, 2017.