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EU Rights

EU Rights in the Spotlight

The European Court of Justice delivered two judgments during December that were widely covered by media and of particular interest. One of them, on Case C-202/13, concerned the ability of an EU Member State to require that third country nationals who hold residence cards as family members of EU citizens also get an entry visa before entering the country. The other, on the joined cases C-148/13, C-149/13 and C-150/13, concerned the tests that are admissible for a Member State to administer when assessing the sexual orientation of an individual applying for asylum on the basis of their exposure to persecution due to their sexual orientation.


Case C-202/13, Sean Ambrose McCarthy and Others v Secretary of State for the Home Department

On the 18th of December, the ECJ made a decision on case Case C-202/13, Sean Ambrose McCarthy and Others v Secretary of State for the Home Department.

The case revolved around the question of whether third country nationals who hold a residence card as a family member of an EU citizen must also have an entry visa.

Sean Ambrose McCarthy is a British and Irish citizen married to a Colombian national, Helena Patricia McCarthy Rodriguez. They also have a daughter. The family have resided in Spain since 2010 and have regularly been travelling to the UK, where they also own a house. Ms McCarthy holds a residence card issued by the Spanish authorities as she is a family member of an EU member.

Under UK law, in order to travel to the UK, those who hold a residence card must also apply for an entry permit (EEA family permit) which is valid for six months and can be renewed at the British diplomatic mission abroad. The procedure includes the filling out of a form in which the person has to disclose details regarding finances and employment.

The McCarthy family felt, in 2012, that these national provisions infringed their right to free movement. They brought an action before the High Court of Justice of England and Wales. The Court proceeded to ask the ECJ whether Directive 2004/28 implies that third country nationals are required to obtain a visa in order to enter the UK territory if they have a residence card.

The ECJ considered that Directive 2004/38 was applicable in the McCarthy case. There is no provision in the Directive which indicates that there is a requirement for the third country national family member who holds a residence card to have to obtain a visa additionally in order to enter the territory of the EU citizen’s Member State of origin.

The Court goes further and examined the ability of Member States to impose such measures. The Court highlighted that there is a right on the basis of Article 35 to refuse, terminate or withdraw a right given by the directive if there is an abuse or fraud. However that right is based on the individual examination of each case. Therefore a blanket requirement that all non-EU family members who hold residence cards obtain entry visas is contrary to the Directive.

The Court went on to say that even if a Member State faces a high number of cases of abuse or fraud, this is no basis for the adoption of provisions that breach Directive 2004/38.

The Joined cases of A (C 148/13), B (C 149/13), C (C 150/13) v Staatssecretaris van Veiligheid en Justitie

On the 2nd of December, the European Court of Justice delivered a decision on the joined cases of (C‑148/13),  (C‑149/13),  (C‑150/13) v Staatssecretaris van Veiligheid en Justitie.

A, B and C are third country nationals who lodged separate applications for temporary residence in the Netherlands. They stated that they feared persecution in their countries of origin on account of their homosexuality.

A’s application was rejected by the Staatssecretaris on the basis that his claim that he was a homosexual was not credible. A lodged a second application in which he stated he was prepared to prove his sexual orientation (through a test or a performance of a homosexual act). The Staatssecretaris rejected his second application as it considered it inappropriate for it to rely on the declared sexual orientation of A without assessing the credibility of it.

B’s application was also rejected because his statements about his homosexuality were “vague, perfunctory and implausible” (para 26) and the Staatssecretaris felt that he should be able to give more detail about his emotions and internal awareness of his own sexuality.

C’s first application for asylum was based on grounds other than persecution based on his sexual orientation. This application was rejected by the Staatssecretaris. C lodged a second application in which he claimed that he would be persecuted based on his sexual orientation. He stated that he did not include this aspect in his first application because he could not indicate his homosexual feelings while in his country of origin. He also included video of intimate acts with a person of the same sex.  The Staatssecretaris rejected this application as well because C could not explain how he became aware of his homosexual feelings and couldn’t answer questions about the Dutch organisations that protect the rights of homosexuals.

Following these rejections, A, B and C lodged appeals before the Rechtbank’s-Gravenhage. Their appeals were rejected: the Rechtbank’s-Gravenhage held that the Staatssecretaris was right in considering their statements regarding their homosexuality not credible. A,B and C lodged another appeal to the Raad van Staat.

During the main proceedings, the three applicants argued that the Staatssecretaris, in the process of assessing the credibility of the applicants for asylum, asked questions regarding their declared sexual orientation which breach the right to human dignity and the right to respect for their private life. Furthermore, they argued that the authorities in question did not take into account the shame and cultural reservations which would make it difficult for an applicant to openly talk about his sexual orientation.

The Staatssecretaris considered that Directive 2004/38 and the Charter of Fundamental Rights are not clear when it comes to the assessment of declarations of the sexual orientation of asylum applicants. In its opinion it was necessary to verify whether the applicants could make a plausible case that they belonged to or could be perceived to belong to a social group which could lead to them being persecuted.

The Raad van Staat considered that asking such questions could be an infringement of EU law. Therefore it went to the ECJ to ask about the limits imposed by Article 4 of Directive 2004/38 and Article 3 and 7 of the Charter regarding the method of assessing the “credibility of a declared sexual orientation” (para 43).

The ECJ stated from the outset that Article 4 of Directive 2004/38 should be read in accordance with the Geneva conventions, which are considered the cornerstone of international law for the protections of refugees. Therefore the directive should be interpreted in a manner consistent with the Geneva Conventions as well as the Charter. The directive does not include a procedural framework for an asylum seeker, however it explains the guarantees which must be afforded to any asylum seeker.

Given this context, Article 4 must be interpreted as imposing certain limits when assessing the circumstances surrounding the declared sexual orientation of an applicant for asylum. The assessment must be done on an individual basis and must take into account the individual’s situation and circumstances in order to determine whether the applicant has been/could have been exposed to persecution in his country of origin.

The Court went on to give guidance concerning the methods of assessment to be used by national authorities.

First, the assessment cannot be based on stereotyped notions associated with homosexuals as this would not allow the authorities to take into consideration personal circumstances and situations specific to the applicant. The inability of an applicant to answer very personal questions about his sexuality is not sufficient reason to rule that his declaration lacks credibility.

Second, while authorities are entitled to interview the applicant in order to determine facts and circumstances in regards to his declared sexual orientation, they cannot ask questions regarding the applicant’s sexual practices as this would breach the respect of private and family life.

Third, the national authorities cannot allow, as was proposed by certain applicants, for tests to be done to demonstrate their homosexuality or to have homosexual acts be conducted, or even to include with the application videos of an intimate nature between persons of the same sex. All of these could be considered to infringe human dignity, a right guaranteed by the Charter. The Court went on to highlight the danger of admitting such evidence in the process; it could create a de facto requirement for future applicants.

Fourth, the lack of credibility cannot be based on the reticence of the applicant to reveal intimate aspects of his sexuality, or the fact that the person in question did not, from the outset, declare his sexuality.

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