The European Union’s top court has ruled that psychological tests should not be used as grounds to reject asylum seekers fleeing countries where homosexuality is illegal.

Effectively barring use of sexual orientation tests as an invasion of “the most intimate aspects of life”, the European Court of Justice (ECJ) found that asylum seekers should not be pressured into examinations that have included drawing pictures of people the rain and the Rorschach ink-blot test.

Tests to determine a person’s sexual orientation are controversial, but are widely used when assessing asylum claims.

The ECJ ruling is binding in all 28 EU states and it stems from the case of a Nigerian man who submitted an asylum application in Hungary in April 2015 saying he feared persecution in Nigeria for being gay.

The unnamed man filed a request for refugee status in the Hungarian city of Szeged in April 2015. At the time Hungary was starting to face a surge in illegal migrants from Africa and the Middle East crossing the EU border from Serbia

The ECJ ruled: “The performance of such a test amounts to a disproportionate interference in the private life of the asylum seeker”.

The Luxembourg-based judges noted that the EU executive has disputed the reliability of such tests.

Hundreds of homosexuals fearing persecution in Africa, the Middle East and Chechnya have sought asylum in the EU, the EU Agency for Fundamental Rights has reported.

The Nigerian man’s claim was rejected after a psychologist’s report failed to confirm his homosexuality.

A court in Szeged, Hungary, must now reconsider his case in light of the ECJ ruling.

In December 2014 the ECJ ruled on a similar case in the Netherlands and found that sexuality tests violated asylum seekers’ human rights.

In the new ruling, the ECJ said “certain forms of expert reports may prove useful” in such cases, but added that such reports interfered with a person’s privacy. Authorities must also determine the reliability of a claimant’s statements, the judges said.

Laurie Nowell
AMES Australia Senior Journalist