The High Court has quashed a ruling of the Refugee Appeals Tribunal (the Tribunal) when they failed to properly assess the credibility of an asylum applicant’s claim based on his sexual orientation. The High Court held a “telescoped hearing” for the challenge under judicial review, where the applicant had claimed asylum on the basis that he would be persecuted and face serious harm by reason of his sexual orientation if he were returned to Nigeria. The High Court held that the applicant did have substantial ground on which to apply, and ordered that his application be reassessed.
The High Court found that it was unclear from the Tribunal decision whether or not they accepted that the applicant is homosexual. According to the High Court it is essential that a clear determination on this matter be made. The High Court used principles set out in the UK Supreme Court case of HJ (Iran) v SSHD [2012] UKSC 31, by Lord Hope, which set out the issues to be examined by the Tribunal, when assessing an asylum claim related to the sexual orientation of the applicant. The first part of the staged test is to consider whether the applicant is homosexual. The next three stages rely on this determination. According to the High Court, the Tribunal failed to make a finding on the core element of the applicant’s claim. The High Court ordered that the decisions made by the Tribunal and the Minister should be quashed and the matter receive further hearing before a different tribunal member.
Click here to read the judgment in C.C. v Refugee Appeals Tribunal and others [2014] IEHC 491
The Court of Justice of the European Union (CJEU) yesterday clarified the methods by which national authorities may assess the credibility of the declared sexual orientation of applicants for asylum.
The CJEU stated that declarations by an applicant for asylum as to their sexual orientation are merely the starting point in the process of assessment of the applications and it may require later confirmation. However the methods used by the authorities to assess the statements and the evidence must be consistent with EU law and the fundamental rights of the EU Charter, especially the right to dignity and respect for private and family life.
The Court gave four main points of guidance for national authorities:
Firstly, assessment solely based on stereotyped notions associated with homosexuals does not allow the authorities to take account of the individual situation.
Secondly, while national authorities conduct interviews to determine the facts and circumstances of an application, questions regarding the detail of the applicant’s sexual practices are contrary to fundamental rights.
Thirdly, some asylum applicants have suggested demonstrating their participation in homosexual acts, as a ‘test’ for their credibility. The Court was of the opinion that even allowing applicants to voluntarily submit such evidence would infringe human dignity and would pressure other applicants to offer the same.
Fourthly, information relating to personal identity, particularly sexuality, is of a sensitive nature which applicants may be reluctant to reveal. The fact that an applicant does not reveal that they are homosexual from the outset cannot be the sole reason for deciding that the claim is not credible.
Click here to read the CJEU judgment in A, B, C v Staatssecretaris van Veiligheid en Justitie.