Gaurav Jairaj & Kavya Lalchandani
In the case of F v. Bevándorlási és Állampolgársági Hivatal, the Court of Justice, European Union admitted the use of investigative examination on homosexual asylum seekers’ to be a violation of bundle of rights including the right to privacy and human rights of asylum seekers and therefore, put a complete ban on the use of such tests in the European Union. The Court held that the psychological test on asylum seekers are violative of right to privacy and rejecting claims on the basis of such tests would violate their human right. The Court, however, allowed the use of expert reports in order to assess the asylum claim only if such expert reports do not violate any human rights of the asylum seekers and should not be relied upon solely. It is a much-needed judgment as, after much criticism and ban on the use of medical tests like phallometric test, the asylum authorities of different countries opt for the use of other investigative tests on assessing the homosexual asylum claim.
In most of the countries, homosexuality has been treated as a disease. In more than 60 countries, consensual same-sex sexual activities are still categorised as a criminal act. In some of the Gulf countries like Saudi Arabia and Iran, homosexual activities are punishable by death penalty while others punish such activities as “unnatural” and “indecent” behaviour. Due to such threats to life and freedom, homosexuals are forced to flee from such countries and seek asylum in those countries whose laws do not prohibit any same-sex sexual activities and give equal freedoms to the members of the LGBTQI+ community.
Asylum law is mainly governed by the Refugee Convention where Article 1 A (2) of the said convention defines “refugee” to be any person who upon a well-founded fled from his country of origin with a fear of being prosecuted for reason being race, religion, nationality, membership of particular social group, or of political opinion. Refugee claims relating to sexual orientation started to emerge at the beginning of the 1990s. Gradually, sexual orientation was accepted as the basis for the prosecution bases on membership of a particular social group.
According to the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, “a ‘particular social group’ normally comprises persons of similar background, habits or social status.” An asylum-seeker may belong to a social group whose members have a shared identity based on their distinct sexual orientation and/or gender identity. Insofar as the individual claiming asylum shares a common identity with other individuals based on sexual orientation, and where that identity is the reason for their being targeted for persecution, they are properly viewed as members of a particular social group within the meaning of the 1951 Convention and 1967 Protocol refugee definition.
This paper deals with the violation of human rights of individuals in the course of investigating the asylum claims of those people who claim it on the ground of their sexual orientation. Some countries used psychological tests such as the “Draw-a-person in the rain test”, “Szondi test”, “Rorschach test”, and other such psychological tests for determining the sexual orientation of the asylum seeker. Through this paper, the authors show that first, the tests are not adequate to establish the sexual orientation of an individual and second, investigating the asylum claims on the basis of psychological tests violates the basic rights of persons seeking asylum including the widely accepted principle of non-refoulment.
While psychologists do have expertise with regard to the problems faced by the LGBTQI+ Community. establishing one’s sexual orientation is a matter of self-identification and not an issue that needs psychological analysis. Thus, while psychologists may know about problems and hardships encountered by them, they cannot figure out one’s sexual orientation. Moreover, sexual orientation may vary in life of a person and thus, must be seen as an integral to human life and as any psychological deviation. World Health Organisation, in 1990, dropped homosexuality from the list of medical categories (diseases) and since then homosexuality has ceased to be considered as a medical or psychiatric condition. Therefore, there is no medicinal practitioner, psychiatrist, or psychologist who has the expertise to find out the sexual orientation of people.
Instead of conducting tests to find out sexual orientation, officials should rely on the applicant’s self-declaration of sexual orientation which should be considered to be credible evidence if any other evidence is not available. For example, the Portuguese asylum authority always rely on the self- identification of asylum seeker in determining their homosexual asylum claims. Even if there is of lack of information as many asylum seekers are not able to provide documents or proof of their sexuality, officials should rely on the seeker’s statement alone rather than rejecting the claims solely on the basis of certain unreliable tests.
There is no such psychological test which can clearly find out the sexual orientation of a person as such tests are contentious and not reliable in assessing one’s homosexuality. Moreover, rejecting the claims on the basis of these frivolous tests of the asylum seeker is against the principle of Non-refoulment. Non- refoulment has attained the status of Jus Cogens norms which protects the rights of refugees and prohibits the country where asylum is sought, from sending the refugee back to the country where he/she is facing persecution or may be persecuted. Thus, using these frivolous and unreliable psychological tests upon homosexual asylum seekers and cancelling their legitimate claims and sending back to the country where they are facing persecution is a clear violation of the principle of non-refoulment.
USE OF PSYCHOLOGICAL TESTS UPON HOMOSEXUAL ASYLUM SEEKERS AND VIOLATION OF THEIR RIGHTS
Human rights are inalienable rights and include those fundamental rights which all human beings are entitled to. Increasing discrimination and ill-treatment of homosexual people because of their sexual orientation and gender identity has become a major concern for the International Commission of Jurists and other human rights organisations. Because of the lack of work and legislation in this field, homosexual people are vulnerable to threats to and violation of their rights. Considering all these facts, the human rights experts from all over the world had gathered to make provisions for the safeguard of homosexual people from the ill-treatment they face all around the world. On November 9 2006, they adopted Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. These Principles are a reflection of binding international legal standards which are derived from the various human rights instruments.
Principle 18 of Yogyakarta principles provides that “No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.” It specifically prohibits any use of such psychological examinations for determining the sexual orientation or gender identity of homosexual persons.
These tests conducted on homosexual people to determine their sexual orientations and gender identity are an outright violation of their rights. Since it is hard to provide tangible proof one’s claim in case of homosexuality, applicants should be given the benefit of doubt rather than rejecting their claims predominantly on the basis of unreliable and controversial psychological tests.
USE OF PSYCHOLOGICAL TESTS HEAVILY DISREGARDS AND UNDERMINES THE RIGHT TO PRIVACY OF HOMOSEXUALS
Right to privacy has been provided for under all the major human rights treaties including Universal Declaration of Human Rights, International Convention on Civil and Political Rights, European Convention on Human Rights etc., which seek to protect individuals from any unlawful interference into the private life of individuals. Right to Privacy is not only limited to international conventions but is also incorporated in most constitutions of countries. It has also been recognised by the Court of Justice, European Union in the case of X, Y and Z v. The United Kingdom, European Court of Human Rights in the case of Dudgeon v. the United Kingdom and again in the case of Goodwin v. the United Kingdom. Even a minor medical intervention qualifies to be an infringement of the right to privacy. The psychological examination of one’s sexual orientation can be intrusive enough to be qualified as a medical examination and thus, is a clear violation of the right to privacy of that individual.
Due to the weightage and importance of psychological examinations in determining homosexual asylum claims, the asylum seekers feel a “de facto” pressure because the decision totally depends on such tests. This decision concerns the applicant’s fear of being persecuted if returned back to the country where he/she may face persecution. In such a context, an applicant’s mandatory psychological examination constitutes an interference with privacy.
The use of such “projective personality tests” on homosexual asylum seekers affects the asylum status determination process, as the decision of the authority in giving asylum status to those who do not have any proof of their homosexuality, heavily depends on such tests. Those asylum authorities who used to use such tests or are continuing with such tests, disregard major concerns related to the reliability and accuracy of such tests, as well as the consequential violation of their rights. Instead of the judicial development made in the field of prohibiting use of medical and psychological tests in assessing the homosexual asylum claims, some of the countries heavily disregard them and continue with their national norms of assessing the claims which are violative of their human rights. It is need of the hour that the illegitimacy of such practices is recognized and international guidelines are adopted for granting asylum on the basis of sexual orientation and gender identity so that no homosexual asylum seekers are not forced to undergo tests that amount to violations of their rights.
Gaurav Jairaj & Kavya Lalchandani are 3rd and 4th Year Law Students respectively at National Law Univerisity, Odisha.