EU Asylum Seekers May Not Be Subjected to ‘Homosexuality Tests’

In April 2015, a Nigerian national submitted an application for asylum to the Hungarian authorities claiming that he feared he would be persecuted in his country of origin on account of his homosexuality. Although those authorities did not consider that person’s statements to be contradictory, they rejected the application on the ground that the psychologist’s expert report they had commissioned for the purpose of exploring the personality of the asylum seeker had not confirmed his alleged sexual orientation. The asylum seeker brought an action against that decision before the Hungarian courts contending that the psychological tests used for the expert’s report at issue seriously prejudiced his fundamental rights without making it possible to assess the plausibility of his sexual orientation.

The courts found that even if the performance of such tests is conditional upon the consent of the person concerned, that consent is not necessarily given freely, since it is imposed under the pressure of the circumstances in which an asylum seeker finds himself. In those circumstances, recourse to a psychologist’s expert report in order to determine the sexual orientation of the asylum seeker constitutes an interference with that person’s right to respect for his private life.

The Court also noted that the preparation of a psychologist’s expert report seeking to determine an asylum seeker’s sexual orientation is not essential for the purpose of assessing the credibility of his statements relating to his sexual orientation.

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