The Court of Justice of the European Union (CJEU) has ruled that the use of psychological tests to determine an asylum seeker's sexual orientation as a basis for international protection was in contravention of Article 4 of Directive 2011/95, read in light of Article 7 of the Charter of Fundamental Rights of the European Union.
The case concerned a Nigerian asylum seeker, Mr. F, who had applied for asylum in Hungary on the basis that he was being persecuted in his country of origin because he was homosexual. Although the Office for Immigration and Citizenship in Hungary did not consider his statements to be contradictory, they rejected his application on the ground that the psychologist's expert report they had commissioned for the purpose of exploring his personality had not confirmed his alleged sexual orientation. The tests used by the psychologist included personality tests, Rorschach tests and Szondi tests.
F took the Immigration Office’s decision before the Administrative and Labour Court in Hungary which referred the question to the CJEU for preliminary ruling. Mr F contended before the court that the psychological tests he underwent prejudiced his fundamental rights and did not make it possible to assess the plausibility of his sexual orientation.
The Court stated that the Directive did not exclude the use of expert reports in assessment of the facts and circumstances in order to determine the applicant’s need for protection. However, the procedures for recourse to such a report must be consistent with, in particular, the fundamental rights guaranteed by the Charter. The CJEU stated that the right to respect for private and family life, as affirmed in Article 7 of the Charter is among the fundamental rights having specific relevance in the context of the assessment of the statements made by an applicant for international protection relating to his sexual orientation.
In this regard, it should be noted that a psychologist’s expert report, was commissioned by the determining authority in the context of the examination of the application for international protection submitted by the person concerned.
It follows that that report is prepared in a context where the person called upon to undergo projective personality tests is in a situation in which his future is closely linked to the decision that that authority will take on his application for international protection and in which a possible refusal to undergo these tests is liable to constitute an important factor on which the authority will rely for the purpose of determining whether that person has sufficiently substantiated his application. Therefore, even if the performance of the psychological tests on which an expert’s report, such as that at issue in the main proceedings, is based is formally conditional upon the consent of the person concerned, it must be considered that that consent is not necessarily given freely, being de facto imposed under the pressure of the circumstances in which applicants for international protection find themselves. In those circumstances, as the Advocate General noted, the preparation and use of a psychologist’s expert report such as that at issue in the main proceedings constitutes an interference with that person’s right to respect for his private life.
Under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. In observance of the principle of proportionality, limitations may be imposed on the exercise of those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
In this context, although interference with an applicant’s private life can be justified by the search for information enabling his actual need for international protection to be assessed, it is for the determining authority to assess, under the court’s supervision, whether a psychologist’s expert report which it intends to commission or wishes to take into account is appropriate and necessary in order to achieve that objective.
In this respect, it should be noted that the suitability of an expert’s report such as that at issue in the main proceedings may be accepted only if it is based on sufficiently reliable methods and principles in the light of the standards recognised by the international scientific community.
In any event, the impact of an expert’s report such as that at issue in the main proceedings on the applicant’s private life seems disproportionate to the aim pursued, since the seriousness of the interference with the right to privacy it constitutes cannot be regarded as proportionate to the benefit that it may possibly represent for the assessment of the facts and circumstances set out in Article 4 of the Directive.
In the first place, the interference with the private life of the applicant for international protection arising from the preparation and use of an expert’s report, such as that at issue in the main proceedings, is, in view of its nature and subject matter, particularly serious.
Such an expert’s report is based in particular on the fact that the person concerned undergoes a series of psychological tests intended to establish an essential element of his identity that concerns his personal sphere in that it relates to intimate aspects of his life.
It is also necessary to take account, in order to assess the seriousness of the interference arising from the preparation and use of a psychologist’s expert report, such as that at issue in the main proceedings, of Principle 18 of the Yogyakarta principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, which states, inter alia, that no person may be forced to undergo any form of psychological test on account of his sexual orientation or gender identity.
Article 4 of the Directive does not prevent deciding authorities from ordering that an experts report be obtained provided that the procedures for such a report are consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, that that authority and those courts or tribunals do not base their decision solely on the conclusions of the expert’s report and that they are not bound by those conclusions when assessing the applicant’s statements relating to his sexual orientation.
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