EU Court Rejects ‘Gay Tests’ For Asylum Seekers

The European Union's top court has ruled that psychological tests cannot be used to assess asylum applications from those facing persecution in their home countries due to their sexuality.

Such tests amount to "a disproportionate interference in the private life of the asylum seeker," the European Court of Justice announced on Thursday.

Hungarian immigration officials had administered such tests to an unidentified man seeking refugee status based on a fear of persecution on account of his homosexuality in his home country of Nigeria. The court ruled the officials acted illegally. As Human Rights Watch has noted, Nigeria's law prohibiting same-sex marriage is so broad that it effectively criminalizes LGBT people.

When the man applied for asylum in April 2015, Hungarian authorities enlisted a psychologist who had him take a range of personality tests: "namely the 'Draw-A-Person-In-The-Rain' test and the Rorschach and Szondi tests," according to the judgment. The psychologist concluded it wasn't possible to confirm the man's assertion of his sexual orientation, and his asylum application was rejected.

The man then brought the matter to Hungarian court, arguing that the psychologist's report had prejudiced his fundamental rights without plausibly assessing his sexual orientation.

The Hungarian court referred the case to the EU court, which agreed with the asylum seeker.

The court's says it is permissible to seek the opinion of experts in assessing "the facts and circumstances relating to the declared sexual orientation of an applicant" but those procedures must respect fundamental human rights guaranteed by the EU Charter. It also says that authorities cannot base their decisions solely on experts' reports, and that experts' opinions be nonbinding when assessing asylum seekers' statements about their sexual orientations.

The court notes that the man said he did not undergo any physical examination and was not subjected to tests involving pornography, a practice the Czech Republic has been criticized for using in the past.

Katrin Hugendubel, the advocacy director for ILGA-Europe, a human rights advocacy organization, called the ruling an "important step against one of the many problems and humiliations LGBTI refugees still face in many EU member states."

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