When this was appealed, the Dutch Council of State referred the case to the CJEU, asking what was the limit of what can be used as evidence of a credible claim by a gay asylum seeker. The Dutch authorities rejected to allow this as evidence.
As part of the assessment, in an attempt to demonstrate that their asylum claim was true, two of the three applicants submitted pornographic video evidence of same-sex sexual acts that they had participated in. The 2014 case of A, B and C v Straatssectaris van Veilgheid en Justitie was referred to the CJEU by the Netherlands after each of the three applicants’ claim for asylum had been rejected for not being credible. While the situation today is far from perfect, two cases of the Court of Justice of the European Union (CJEU) show how in the past unscientific, and human rights infringing medicalised tests have been used when assessing the sexuality of gay asylum seekers. However, as this blog has previously discussed, ‘proving’ whether a person is LGBTI, and therefore if their asylum claim is credible, is an almost impossible task. When this discrimination leads to individuals being persecuted because of their sexuality or gender identity, the victims are entitled to asylum under EU law. Homosexuality is illegal in at least 69 countries and discrimination against LGBTI persons is globally rampant.
