Hungary - Győr Administrative and Labour Court, 13.K.27.101/2016/7, 1 June 2016
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article” |
Headnote:
The applicant is a Nigerian gay man whose credibility was questioned by the asylum authority (OIN) and his application was rejected. The court, however, found that the applicant’s statements were coherent and credible. The court found also that the psychological examination of the applicant’s sexual orientation cannot be accepted because it is humiliating and violates the right to private life.
Having restored credibility the court quashed the administrative decision and ordered a new procedure where the situation of the applicant and other gay men in Nigeria must be assessed.
Facts:
The applicant was living with his grandmother in a small village in Nigeria. He had to leave Nigeria for two reasons, firstly because he was caught having eaten the Jam root of the village. Secondly because he also claimed that he slept with other men in the village and the police had created a list of all those men that had slept together. He tried to regularise himself in Greece by marrying a woman but she later left him when his sexual orientation came to light. The OIN did not accept the flight story and ordered a psychologist expert to examine the applicant’s sexual orientation and declare whether he was gay or not. The opinion claimed that the applicant’s sexual orientation could not be homosexual. The OIN rejected the asylum claim and the applicant challenged the decision at the court.
Decision & reasoning:
The court found that the statements in general were coherent to a sufficient level and some contradictions could result from language barriers as all interviews were held in English, which was not the mother tongue of the applicant. The court excluded the psychological expert opinion on the applicant’s sexual orientation because it is contrary to Article 4 and 7 of the EU Charter on Fundamental Rights as set forth in CJEU jurisprudence. The court found that homosexual persons cannot be obliged to undergo humiliating practices and examinations, consequently the court accepted the applicant’s statements as credible and ordered the re-examination of the case with an obligation to assess the situation of gay men in Nigeria.
Outcome:
Appeal granted, decision quashed, new procedure ordered.
Observations/comments:
An English translation of the case can be found at the top of the page.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| CJEU - Joined cases C‑148/13 to C‑150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014 |