Opinion of the Advocate General — ECLI:EU:C:2014:2111
Date: 2014-07-17
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Grand Chamber), 2 December 2014 1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Procedure for the grant or withdrawal of refugee status in Member States — Directive 2005/85 — Procedure for examining an application for international protection — Assessment of facts and circumstances — Fear of persecution on grounds of sexual orientation — No obligation to hold that sexual orientation is an established fact solely on the basis of the applicant’s declarations — Requirement for the assessment of statements and evidence to be consistent with Directives 2004/83 and 2005/85, and with Articles 1 and 7 of the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union, Arts 1 and 7; Council Directives 2004/83, Art. 4(3) and 2005/85) 2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Procedure for the grant or withdrawal of refugee status in Member States — Directive 2005/85 — Procedure for examining an application for international protection — Assessment of facts and circumstances — Fear of persecution on grounds of sexual orientation — Assessment founded on questions based only on stereotyped notions concerning homosexuals — Not permissible (Council Directives 2004/83, Art. 4(3) and 2005/85, Art. 13(3)(a)) 3. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Procedure for examining an application for international protection — Assessment of facts and circumstances — Fear of persecution on grounds of sexual orientation — Assessment based on detailed questioning as to the sexual practices of the applicant — Breach of the right to respect for private and family life — Not permissible (Charter of Fundamental Rights of the European Union, Art. 7; Council Directive 2004/83, Art. 4) 4. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Procedure for examining an application for international protection — Assessment of facts and circumstances — Fear of persecution on grounds of sexual orientation — Acceptance of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or the production by him of films of such acts — Breach of the right to human dignity — Not permissible (Charter of Fundamental Rights of the European Union, Art. 1; Council Directive 2004/83, Art. 4) 5. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Procedure for the grant or withdrawal of refugee status in Member States — Directive 2005/85 — Procedure for examining an application for international protection — Assessment of facts and circumstances — Fear of persecution on grounds of sexual orientation — Option for the competent national authority to find that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution — Not permissible (Council Directives 2004/83, Art. 4(3) and 2005/85, Art. 13(3)(a)) 1. The competent authorities examining an application for asylum based on a fear of persecution on grounds of the sexual orientation of the applicant for asylum are not required to hold that the declared sexual orientation is an established fact on the basis solely of the declarations of the applicant. Those declarations constitute, having regard to the particular context in which the applications for asylum are made, merely the starting point in the process of assessment of the facts and circumstances envisaged under Article 4 of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. Although it is for the applicant for asylum to identify his sexual orientation, which is an aspect of his personal identity, applications for the grant of refugee status on the basis of a fear of persecution on grounds of that sexual orientation may, in the same way as applications based on other grounds for persecution, be subject to an assessment process, provided for in Article 4 of that directive. However, the methods used by the competent authorities to assess the statements and documentary or other evidence submitted in support of those applications must be consistent with the provisions of Directives 2004/83 and 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status and, as is clear from recitals 10 and 8 in the preambles to those directives respectively, with the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity, enshrined in Article 1 of the Charter, and the right to respect for private and family life guaranteed by Article 7 thereof. (see paras 49, 52, 53) 2. Article 4(3)(c) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Article 13(3)(a) of Directive 2005/85, on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as precluding, in the context of the assessment by the competent national authorities, acting under the supervision of the courts, of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation, the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals. While questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment, the assessment of applications for the grant of refugee status on the basis solely of stereotyped notions associated with homosexuals does not satisfy the requirements of the provisions referred to above, in that it does not allow those authorities to take account of the individual situation and personal circumstances of the applicant for asylum concerned. Therefore, the inability of the applicant for asylum to answer such questions cannot, in itself, constitute sufficient grounds for concluding that the applicant lacks credibility. (see paras 62-63, 72, operative part) 3. Article 4 of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of the assessment of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum whose application is based on a fear of persecution on grounds of that sexual orientation, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum. While the national authorities are entitled to carry out, where appropriate, interviews in order to determine the facts and circumstances as regards the declared sexual orientation of an applicant for asylum, questions concerning details of the sexual practices of that applicant are contrary to the fundamental rights guaranteed by the Charter and, in particular, to the right to respect for private and family life as affirmed in Article 7 thereof. (see paras 64, 72, operative part) 4. Article 4 of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of the assessment of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum whose application is based on a fear of persecution on grounds of that sexual orientation, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts. Besides the fact that such evidence does not necessarily have probative value, such evidence would of its nature infringe human dignity, the respect of which is guaranteed by Article 1 of the Charter. (see paras 65, 72, operative part) 5. Article 4(3) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Article 13(3)(a) of Directive 2005/85, on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as precluding, in the context of the assessment of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum whose application is based on a fear of persecution on grounds of that sexual orientation, the competent national authorities from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution. It is clear from Article 4(1) of Directive 2004/83 that Member States may consider it the duty of the applicant to submit ‘as soon as possible’ all elements needed to substantiate the application for international protection. However, having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset. (see paras 68, 69, 72, operative part)