ECJ: Asylum seekers should not have to undergo tests to prove they are gay

Illustrated rainbow pride flag on a white background.

The European Court of Justice has ruled that refugees who claim asylum on the grounds that they are gay should not have to undergo tests to prove it.

The court made the ruling in relation to three men, one from Uganda the other from a Muslim country, who had failed in their bids for asylum when a Dutch court said they had not proved their sexual orientation.

In its latest ruling, the BBC reports the court said that determining a refugee’s sexual orientation had to be consistent with EU law and respect their private and family life.

In particular, it said that evidence of same-sex acts submitted from tests or on film infringed human dignity, even if it was proposed by the asylum applicant. Allowing such evidence could result in it becoming a requirement, the court said

While authorities could interview an asylum seeker to find out about their sexual orientation, questions could not be asked about same-sex sexual activity.

Phallometric tests, which measure the blood-flow into the penis while subjects are asked to watch sexual content were also deemed to be inappropriate.

A report published in October by the Sir John Vine, the Independent Chief Inspector of Borders and Immigration, found that a fifth of gay asylum interviews conducted by Home Office caseworkers contained some stereotyping and a tenth contained questions of an unsatisfactory nature.

The Chief Inspector expressed particular concern about the treatment of sexual identity cases in the Detained Fast Track (DFT) process.

Earlier this summer, the High Court ruled that fast track detention, a system used to process the vast majority of cases, was “unlawful”.

In response to Sir John’s report, the Home Office said it accepted “all eight of the Chief Inspector’s recommendations, seven in full and one in part”.

The department pledged to improve training for caseworkers.