Gay asylum complaint in A.T. v Sweden - AIRE Centre and others' submission to the European Court of Human Rights

The Aire Centre, along with the ICJ, Amnesty International, UKLGIG and ILGA-Europe, have published their joint intervention to the European Court of Human Rights in the case of A.T. v Sweden. 

The applicant in A.T. v Sweden is an Iranian national who applied for asylum and a residence permit in Sweden. He primarily claimed that he was homosexual and thus would risk persecution upon return to his home country. His application was rejected.

The applicant complains under Articles 2 and 3 of the Convention that his expulsion from Sweden to Iran would expose him to a real risk of being sentenced to death or subjected to torture or ill-treatment because of his sexual orientation.

One of the key arguments made by the interveners is that the Court should establish that 'the existence of laws criminalizing consensual same-sex sexual conduct discloses evidence of a real risk of Article 3 prohibited treatment' or, alternatively, establish 'that there is a high presumption that such laws engender such risk' (§ 18).

The Court has never held that the existence of laws criminalising homosexual acts amounts to a violation of Article 3. It has, of course, held several times that the existence of such laws violates Article 8, but this is of limited value to an asylum seeker contesting deportation from a Contracting State. This is because, as the Court has stated, if a person lived 'under a ban against homosexual adult consensual relations [this] would in Contracting States disclose a violation of Article 8' but '[o]n a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms [such as Article 8] set out in the Convention' (F. v the United Kingdom).

However, Article 3 place stronger obligations on Contracting States. Unlike under Article 8, States have no margin of appreciation available to them, or scope for derogation, in terms of their obligation not to return an individual to a jurisdiction where they would be at real risk of ill-treatment amounting to a violation of Article 3. And, as the Grand Chamber held in Saadi v Italy, in cases such as this, 'the Court is [...] called upon to assess the situation in the receiving country in the light of the requirements of Article 3' and '[i]n so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment' (§ 126).

If the Court followed the interveners' recommendation and established that the existence of laws criminalizing consensual same-sex sexual conduct disclosed evidence of a real risk of Article 3 prohibited treatment, then a Contracting State would never be able to return a gay man or lesbian to a country that criminalised (at least in a blanket way) homosexual acts. This would be a major change in the Court's jurisprudence, given that it has never upheld a complaint by a homosexual asylum seeker alleging that deportation would result in discrimination based on sexual orientation. 

Some might argue that the interveners' recommended course of action is exactly what the Court should do because the mere existence of laws criminalising homosexual acts puts a gay man or lesbian at the constant risk of, depending on the context, "torture" or "inhuman" or "degrading" treatment (and/or punishment). 

However, the implications of the Court taking this step would be so significant - in terms of its impact on the immigration policies of Contracting States - that many will regard it as unlikely. 

One decisive factor, in this respect, could be the fact that the Court never held the existence of laws that criminalised consensual homosexual acts between adults in a Council of Europe state to be in violation of Article 3. It could be argued that, in light of the universal repeal and repudiation of such laws in all 47 Contracting States, the Court now has a total consensus on which to establish that the existence of such laws is in violation of Article 3. On the other hand, it could be said that if the Court never held that the existence of such laws in a Contracting States was in violation of Article 3, it is untenable that it should change its approach in respect of jurisdictions outside of the Council of Europe.