A new report by the European Union Agency for Fundamental Rights titled 'Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity' has condemned the use by the Czech Republic of 'phallometric testing' during the asylum procedure. This practice tests the physical reaction to heterosexual pornographic material of those who file a claim for asylum on the basis of their homosexual orientation.
The Agency says that it believes the practice could be in violation of Article 3 of the European Convention on Human Rights which prohibits torture and human or degrading treatment, and of Article 8, (respect of one’s private life), “since this procedure touches upon ‘a most intimate part of an individual’s private life’”.
The Agency also considers this practice to be particularly inappropriate for asylum seekers, since “many of them might have suffered abuse due to their sexual orientation and are thus specifically constrained by this kind of exposure”.
The FRA recommends relying on UNHCR’s Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity, which says that “self-identification as LGBT should be taken as an indication of the individual’s sexual orientation”, and that any doubt should benefit the asylum seeker.
Any practice susceptible to impose a duty to conceal one’s homosexuality in the country of origin should be aligned to the same requirements used for assessing persecution on grounds of religion or political opinion, and should be based on the possibility expressing a fundamental trait of one’s personality (as sexual orientation is) freely, including through one’s conduct and relationships.The report says that although none of the EU Member States explicitly objected to considering sexual orientation as a source of persecution for the purposes of granting the status of refugee, as of 2010 the inclusion of that ground of persecution remains only implicit in the legislation of five Member States (Estonia, Greece, Malta, Portugal, and the UK). This means that the definition of a ‘particular social group’ does not explicitly mention the ground of sexual orientation.
Since 2008, four additional Member States have made it explicit that a ‘particular social group’ includes a group defined by the sexual orientation of its members: Finland, Latvia, Poland, and Spain. The total number of Member States which explicitly refer to sexual orientation is now 21. The FRA says it is "noteworthy how Latvia has legislated positively in this area, despite the ongoing problems with freedom of assembly" for LGBT.
The report notes that in several states LGBT asylum cases have been rejected on grounds similar to those adopted in the UK prior to July's Supreme Court ruling: persecution by non-state actors was not recognised; LGBT were told they could avoid persecution by 'discretion' or relocation. It notes such cases in Spain, Romania and the Czech Republic.
Case law collected by the FRA shows that in some Member States there is a tendency to deny requests for international protection on grounds that there would be no persecution in the country of origin if the applicant had concealed his/her homosexuality or had abstained from any ‘external manifestation’ of it. Several decisions consider that by living openly as a LGB person, the applicant takes upon him/herself the risk of the negative consequences of his/her conduct, and cannot claim international protection.
The Italian Court of Cassation in two instances instructed a lower judge to assess whether in the country of origin the crime consists in homosexuality ‘as such’, and in this case persecution would be established, or only in the ‘ostentation’ of homosexual practices, thus implying that refraining from any conduct would be both possible and tolerable, as homosexual identity without ‘external manifestation’ would not be captured by the prohibition.
This duty to live in chastity, or to ‘practice’ in hiding, also became an important element for some decisions in Belgium, France, Germany, and Ireland, where persecution was not established since the applicants had not sought to ‘ostensibly manifest’ their homosexuality and it was deemed possible for them to live their sexual orientation ‘discreetly in the private sphere’ in the country of origin.The report notes that "sexual orientation is a personal characteristic protected under the [European Convention on Human Rights] ECHR, not a shameful condition to be hidden."
France, the Netherlands and Denmark, however, have "adopted more sensitive and factual approaches."
In the Netherlands, the Aliens Circular specifies that LGB claimants should not be required to hide their sexual orientation in their country of origin. On 27 June 2009 an addition was made to the Aliens Circular the effect that whenever homosexual acts are criminalised in the country of origin, the applicant should not be required to have invoked the protection of the authorities there ... Since November 2008 the Dutch Aliens Circular has also specified LGB people from Afghanistan and Iraq to constitute a ‘risk group’; consequently a lesser degree of evidence regarding the gravity of their persecution is required of them.In order to prove sexuality, the report says that Hungary has been reported as using psychiatrists. According to information provided by the Czech Ministry of the Interior they might use 'phallometric testing' for sexual orientation asylum cases "where inconsistencies appear in his interview". This procedure came to light in a German court regarding the claim of a gay Iranian.
The test is performed by a professional sexologist and, in principle, only with the person’s written consent, and once that person has been informed about the technique of the examination. Although a refusal to undergo the test may result in questioning the claim made by the person concerned about his homosexuality, conversely, where a person passes the test and shows no reaction to visual representations of heterosexual sex, his allegations about his homosexuality are considered proven.
The report notes the dubious nature of the process, how it would fail for bisexual people and how it "is particularly inappropriate for asylum seekers, given the fact that many of them might have suffered abuse
due to their sexual orientation and are thus specifically constrained by this kind of exposure."
The report notes widespread reports of stereotyping of what constitutes a homosexual person by migration/border agencies. For example the Swedish media have reported that according to two externally conducted studies, administrators and decision-makers at the Swedish Migration Board have prejudiced ideas of LGBT people. The Minister responsible has been reported as conceding that many Swedish authorities still view LGBT asylum as a new and unknown issue. Since the inception of a project called ‘Beyond the border’, 300 employees of the Migration Board have been trained in 'norm criticism'. The Minister emphasised that correct information is crucial to guarantee the quality assurance of the asylum process.
The report notes that some EU Member States rely on lists of ‘safe’ countries of origin that are drawn without reference to the specific risks of persecution by State organs or non-State actors, on grounds of sexual orientation.
For instance, since the decision adopted by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) on 20 November 2009, the list used in France is made up of 17 States (Armenia, Benin, Bosnia-Herzegovina, Cape Verde, Croatia, Ghana, India, Macedonia, Madagascar, Mali, Mauritius, Mongolia, Senegal, Serbia, Tanzania, Turkey and Ukraine). Persons originating from these countries are not entitled to temporary benefits or a residence permit, they have their claims fast-tracked and the lodging of appeals does not have suspensive effect, i.e. they can be deported before the National Court for the Right of Asylum (CNDA, formerly the CRR) hears their appeal. Yet some of these States have explicit homophobic legislation: this is the case in Benin, Ghana, India, Mauritius, Senegal and Tanzania.
Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity