Blog post

Publication details

Tell me what you see and I’ll tell you if you’re gay: Analysing the Advocate General’s Opinion in Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal
in: EU Immigration and Asylum Law and Policy

Year: 2017
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Author(s) details

Nuno Ferreira
Professor of Law - University of Sussex

Denise Venturi

PhD Student in International Law and Human Rights - Scuola Superiore Sant'Anna
PhD Student in International Law and Human Rights - KU Leuven

Publication description

asylum, sexuality, European Convention on Human Rights, European Court of Justice, Charter of Fundamental Rights, Sexual orientation, evidence
Hungary has been in the spotlight for all the wrong reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications of individuals claiming asylum on grounds related to their sexual orientation. It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached a new low. The most recent incident came to the public knowledge through a reference for a preliminary ruling to the CJEU by the Hungarian Administrative and Labour Court Szeged on 29 August 2016 in the Case C‑473/16, F v Bevándorlási és Menekültügyi Hivatal (the ‘F case’). The case concerns a Nigerian national who had submitted an application for international protection in Hungary based on his sexual orientation, and dealt with the use of projective personality tests and other means for ‘proving’ sexuality. The Hungarian domestic court posed two questions to the CJEU, essentially asking whether the application of Article 4 of Council Directive 2004/83/EC, in the light of Article 1 of the Charter of Fundamental Rights of the European Union (EU Charter), precludes forensic psychologists’ expert opinions based on projective personality tests from being used in asylum adjudication relating to LGBTI (lesbian, gay, bisexual, trans and intersex) claimants. Should that possibility be precluded, the referring Court then asks whether the asylum authorities are prevented from examining by expert methods the truthfulness of these claims. The questions thus refer to the interpretation of particular provisions of Council Directive 2004/83/EC. Yet, the material facts under analysis in the case referred to the CJEU occurred in April 2015, so the law that applies to the facts and that needs to be interpreted in this case is the successor to Council Directive 2004/83/EC – Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive) – in force since 22 December 2013. Following the hearing on 13 July 2017, Advocate General Wahl delivered his Opinion on 5 October 2017. The focus of our analysis will be on this Opinion, but first it is important to recall the case law the CJEU has already produced on sexual orientation and gender identity (SOGI) claims of asylum. Indeed, this is the third case the CJEU has dealt with on SOGI-related asylum claims, and we expect this third case to better reflect international standards than the previous two, particularly in the light of the EU Charter and UNHCR Guideline No. 9.