M.B. v Spain - complaint by lesbian asylum seeker declared inadmissible

The European Court of Human Rights has published its decision in M.B. v Spain in which it has declared part of the complaint inadmissible and struck out the remainder. The complaint, which I wrote about here when it was communicated in August 2015, concerns the deportation of a lesbian woman, now aged 40, to Cameroon. 

The facts

The facts of the case, so far as they relate to sexual orientation discrimination, can be summarised as follows:

In 2013, the applicant, Ms M.B., fell in love with a woman whilst living in Douala and they started a secret relationship. However, people found out and informed Ms M.B.'s family about the existence of the relationship. Ms M.B.'s oldest son telephoned her and told her that her family had found out that she was in a relationship with another woman and were threatening to inform the police about her sexual orientation. 

In Cameroon sexual relations with a person of the same sex are criminalized. Article 347-1 of the Penal Code criminalises "homosexuality", meaning sexual acts between persons of the same-sex, and allows for a punishment of up to five years in prison and a fine of 200,000 francs (£224). These penalties are doubled in respect of a person who has committed sexual acts with a person between sixteen and twenty-one years of age.

In light of the threats against her, Ms M.B. had to leave her apartment and moved to another neighbourhood. A week later, her brother telephoned her and urged her to leave immediately. Ms M.B. decided to leave the country with the help of a trafficker. On 7 March 2015, she landed in Madrid Airport, where she was arrested by the border authorities.

The domestic proceedings

On 8 March 2015, Ms M.B. applied for asylum in Spain. Her request was rejected on 11 March 2015. On 11 March 2015, the Spanish Delegation of the United Nations High Commissioner (UNHCR) issued a report in support of Ms M.B.'s request seeking international protection “due to the seriousness of the applicant’s allegations and the current situation of the LGBT groups in Cameroon”. 

On 13 March 2015, Ms M.B. brought an appeal against the asylum decision, which was rejected on 16 March 2015. 

Ms M.B. then initiated judicial proceedings before the Audiencia Nacional against the asylum decision. On 18 March 2015, the Audiencia Nacional granted Ms M.B.'s request to stay her deportation. However, on 26 March 2015, the Audiencia Nacional lifted this measure, and Ms M.B. was to be deported on 28 March 2015, while an appeal on the merits before the Audiencia Nacional was still pending. 

On 27 March 2015, Ms. M.B. lodged a request with the Court under Rule 39 of the Rules of Court asking for the stay of her removal to Cameroon. On the same date, the Court granted her request and indicated to the Spanish Government that it should stay Ms M.B.'s removal to Cameroon for the duration of the proceedings before the domestic courts.

Further domestic proceedings following Ms M.B.'s application to the Court

After Ms M.B. had applied to the Court, and it had ordered the Spanish government not to deport her to Cameroon whilst her appeal was being considered by the domestic authorities, the Audience Nacional issued its judgment in respect of her appeal. The judgment upheld her appeal with the effect that her application for asylum by the administrative authorities will be reconsidered. 

In accordance with Spanish law, once asylum protection has been requested, an alien may not be expelled until the application is decided (Law 12/2009 of 30 October 2009 on the right of asylum and subsidiary protection). 

Decision of the Court

Ms M.B. complained under Articles 2 and 3 of the Convention that her life and physical integrity would be at risk if she was removed to Cameroon. She further complained under Article 13 taken in conjunction with Articles 2 and 3 of the Convention that the administrative and judicial proceedings concerning her asylum application did not meet the requirements of an effective remedy.

In respect of both complaints, the Court reached a similar conclusion. 

In respect of the Article 13 complaint, the Court stated that, within the terms of Article 37(1)(b) of the Convention ("The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that...the matter has been resolved"), there was no justification for continuing with the application because Ms M.B. could no longer be deported, given that her application for asylum was being re-examined by the domestic authorities. The Court therefore struck out this part of the application. 

In respect of the Article 2 and 3 complaints, the Court stated that Ms M.B.'s application was "premature" within the meaning of Article 35(1) of the Convention ("The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken") because a decision on her asylum application was still pending before the domestic authorities. The Court therefore declared this part of Ms M.B.'s application inadmissible on the basis that she had not exhausted domestic remedies. 

A reasonable decision?

Although the Court's decision may appear reasonable, given that Ms M.B.'s application for asylum is continuing to be examined by the Spanish authorities, it should be considered in the context of the facts of the case and, importantly, the broader jurisprudence of the Court. 

In respect of the facts of the case, it should be noted that the only reason that Ms M.B. was not deported to Cameroon was because she applied to the Court and it ordered a stay of her removal. It was the Interim Measures of the Court that meant that Ms M.B. remained in Spain whilst her appeal was being considered - an appeal that was ultimately successful. Were it not for this, it seems that Ms M.B. would have been deported and, as a consequence, her successful appeal may have been of no benefit to her since, as she claimed, she may have been killed as a consequence of her return to Cameroon. 

In light of this, one could conclude that the Court's decision is reasonable, given that Ms M.B.'s asylum application is now being reconsidered and she will not be deported during this period. 

On the other hand, one could claim that it may have been judicious for the Court to wait for the domestic authorities to conclude their examination of Ms M.B.'s asylum application before reaching its decision. The Court has previously held that Article 35 (exhaustion of domestic remedies) should be applied with "some degree of flexibility and without excessive formalism" (Selmouni v France, [GC] § 77) and Ms M.B.'s case would appear to be one in which such a flexible approach would have been desirable. It would seem reasonable to suggest that, at the point that Ms M.B. was facing deportation and applied to the Court to prevent this happening, that her attempt to use domestic remedies was, for all practical and effective purposes, exhausted. Therefore, at the point that she introduced her complaint to the Court, she was in compliance with Article 35. On this basis, the Court could have waited until the domestic authorities had concluded their consideration of her asylum application before reaching its decision. This would seem sensible because, if the domestic authorities again refuse the asylum application, Ms M.B. would not have to commence a new application to the Court. 

The decision in this case has to be considered in respect of the broader jurisprudence of the Court. Specifically, it has to be seen in the light of the fact that the Court has never held that the deportation of a gay person to a country of origin, outside the Council of Europe, that criminalises same-sex sexual activity amounts to a violation of any aspect of the Convention. The Convention has been in force for nearly 64 years and the Court has contributed little (if anything) to elucidating, safeguarding and developing the human rights of people who, should they be returned by Council of Europe states to the countries they flee, are at risk of inhuman and degrading treatment and punishment, torture, and death. This, as I have argued before here, amounts to a shameful history. 

It is difficult not to reach the conclusion that the decision taken in Ms M.B.'s case is just another example of the Court trying desperately to avoid ruling on the merits of a "gay asylum" case. Of course, the Court is going to have to rule on the merits of some such case one day. But, for now, it seems determined to declare any application of this kind, by any means it can, inadmissible.