An Iraqi national requested international protection for the ninth time in Belgium on 31 March 2022, claiming a fear of being persecuted due to his sexual orientation and relations with transgender men and women. He submitted several photographs of his relationship with S.F.T., with whom he was in a permanent but open relationship, as well as several photos of other partners, both transgender women and men, screenshots of conversations on Grindr and Whatsapp, witness statements and a letter from the organisation Boysproject (a social organisation for male and transgender sex workers). The applicant argued that the documents submitted supported the statements he made in the context of his fifth application for protection, but which he was unable to substantiate at that time with evidence.
By decision of 29 September 2022, the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the request as inadmissible, holding that the applicant’s claim was not credible and that photographs and conversations could easily be staged and that the witness statements and the letter from Boysproject do not, in themselves, constitute evidence of sexual orientation. It also stated that documents only have a supportive effect and cannot in themselves restore the credibility of an unbelievable account or remedy the lack of consistency of the applicant’s statements relating to his homosexual experience. The applicant appealed the decision.
The Council for Alien Law Litigation (CALL) allowed the appeal and sent the case back to the CGRS.
The Council noted that there was no personal interview with the CGRS concerning the claims related to persecution due to homosexuality, as the fifth application for protection was declared inadmissible on 10 September 2019 because the CGRS did not attach any faith to the applicants’ alleged homosexual orientation. The Council further noted that it merely examines whether the applicant’s homosexual orientation was confirmed in the light of the new elements submitted or whether they may shed a different light on the assessment already made.
The Council referred to the CJEU judgment of LH, noting that documents whose authenticity cannot be established or the source of which is not objectively verifiable also constitute elements submitted in support of the application requiring the state authority to assess them, irrespective of whether the application for protection is a first or a subsequent one.
The Council also pointed out that homosexual orientation should not be proved, but that it is sufficient that it is considered plausible. Furthermore, the Council emphasised that the assessment of sexual orientation required a comprehensive assessment of credibility, taking into account statements and documents, but the statements made by an applicant for international protection on his sexual orientation form the starting point for the examination and assessment of the facts and circumstances referred to in Article 48/6 of the Aliens Act. The Council recalled that, in the context of a subsequent application for protection, it was sufficient that that document significantly increased the likelihood of the applicant being eligible for international protection.
The Council also highlighted that from the fact that an applicant, owing to his reluctance to disclose intimate aspects of his life, did not immediately declare that he was homosexual from the date of his first application for asylum, it cannot be concluded that that applicant is not worthy of credibility. The Council noted that it was aware that the applicant’s credibility had been severely impaired due to the many protection applications he lodged, some of them not appealed. However, it concluded that the decision of the CGRS must be annulled and the case re-examined on its merits.