F v Bevándorlási és Állampolgársági Hivatal.
Date: 2018-01-25
28


It must be noted that the statements made by an applicant for international protection relating to his sexual orientation constitute, having regard to the particular context in which applications for international protection are made, merely the starting point in the process of assessment of the facts and circumstances envisaged under Article 4 of Directive 2011/95 (see, by analogy, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 49).
29


It follows that, although it is for the applicant for international protection to identify his sexual orientation, which is an aspect of his personal identity, applications for international protection 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 the assessment process provided for in Article 4 of that directive (see, by analogy, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 52).
30


In that regard, it must be recalled that sexual orientation is a characteristic which is capable of proving an applicant’s membership of a particular social group, within the meaning of Article 2(d) of Directive 2011/95, where the group of persons whose members share the same sexual orientation is perceived by the surrounding society as being different (see, to that effect, judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraphs 46 and 47), as is confirmed, moreover, by Article 10(1)(d) of that directive.
33


That said, it must be noted that Article 4(3) of Directive 2011/95 lists the factors which the competent authorities must take into account during the individual assessment of an application for international protection and that Article 4(5) of that directive specifies the conditions under which a Member State, applying the principle that it is the duty of the applicant to substantiate his application, must consider that certain aspects of the applicant’s statements do not require confirmation. Those conditions include, in particular, the fact that the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to his case, as well as the fact that the applicant’s general credibility has been established.
35


Nevertheless, the procedures, should recourse be had, in that context, to an expert’s report, must be consistent with other relevant EU law provisions, and in particular 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, to that effect, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 53).
36


Even though Article 4 of Directive 2011/95 is applicable to all applications for international protection, whatever the ground for persecution relied on in support of those applications, it is for the competent authorities to adapt their methods of assessing statements and documentary or other evidence having regard to the specific features of each category of application for international protection, in observance of the rights guaranteed by the Charter (see, to that effect, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 54).
40


However, it should be noted, first, that it follows both from Article 4(1) and Article 8(2) of Directive 2005/85 and from Article 4(1) and Article 10(3) of Directive 2013/32 that the determining authority is responsible for carrying out an appropriate examination of applications, at the end of which it will take a decision regarding them. It is, therefore, for such authorities alone to carry out, acting under the supervision of the courts, the assessment of the facts and circumstances laid down in Article 4 of Directive 2011/95 (see, to that effect, judgment of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 40).
41


It is apparent, secondly, from Article 4 of that directive that the examination of the application for international protection must include an individual assessment of that application, taking into account, inter alia, all relevant facts as they relate to the country of origin of the applicant at the time of taking a decision on the application, the relevant statements and documentation presented by him as well as his individual position and personal circumstances. Where necessary, the competent authority must also take account of the explanation provided regarding a lack of evidence, and of the applicant’s general credibility (see, by analogy, judgments of 26 February 2015, Shepherd, C‑472/13, EU:C:2015:117, paragraph 26, and of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraph 36).
49


The right to respect for private and family life, as affirmed in Article 7 of the Charter, in particular, 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 (see, to that effect, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 64).
50


Article 4 of Directive 2011/95 must, accordingly, be interpreted in the light of Article 7 of the Charter (see, by analogy, judgment of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 28).
53


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 (see, to that effect, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 66).
56


As regards, in particular, the proportionality of the interference that has been found to exist, it should be recalled that the principle of proportionality requires, according to the settled case-law of the Court, that the measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, since the disadvantages caused by the legislation must not be disproportionate to the aims pursued (see, to that effect, judgments of 10 March 2005, Tempelman and van Schaijk, C‑96/03 and C‑97/03, EU:C:2005:145, paragraph 47; of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 123; and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 54).
61


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 (see, to that effect, judgments of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 46, and of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraphs 52 and 69).