How do you 'prove' homosexuality to the European Court of Human Rights? M.K.N. v Sweden

The European Court of Human Rights yesterday dismissed the complaint in M.K.N. v Sweden in which the applicant, a native of Mosul in Northern Iraq, complained about a refusal for asylum by the Swedish Migration Board.

Background and facts

The applicant, a married man whose wife and two children are living in Syria, claimed asylum in Sweden on the grounds that he had been persecuted in Iraq due to his Christian beliefs and the fact that he was well-off, that he had been kidnapped at his work place and forced to pay money to Al-Tawahid and AlJihad (groups fighting against the American troops), that these kidnappers had threatened to kill his children and to blow up his place of work, and that his sister-in-law had been murdered outside her work place in late 2008 allegedly as retribution against him and his family.

Following the rejection of his asylum application, the applicant appealed and this time made available the following information to the authorities: 

'after his departure from Iraq, the Mujahedin had found out that he had had a homosexual relationship and that, as a consequence, his partner had been stoned to death. The Mujahedin had also been looking for the applicant in 2009 due to this relationship. He had not revealed this information earlier as he had not been aware that homosexual relationships were accepted in Sweden. Despite this relationship, his intention was to continue living with his wife'.

The Swedish Migration court rejected the applicant's appeal and, in respect of the information about the homosexual relationship, it stated:

'In regard to the applicant’s statement that he had had a homosexual relationship, the court found that he had not given a reasonable explanation for his having made this claim so late in the proceedings. It noted, in this respect, that he had been informed, during the interviews at the Board, that civil servants of the Board and all other people present were bound by professional secrecy. Having regard to this and the applicant’s account of the events, the court found reason to strongly question the veracity of this statement'.

Complaint to the ECtHR

The applicant complained to the Court that if he was returned to Mosul or other parts of Iraq he would face a real risk of being subjected to treatment in breach of Article 3 of the Convention.

The applicant cited the risk posed by virtue of his previous homosexual relationship.

The applicant stated that, contrary to what the Migration Court had found, he had given a reasonable explanation as to why he had not invoked his homosexual relationship earlier in the asylum proceedings and that, consequently, he should be given the benefit of the doubt in regard to this claim.

The Swedish government, who wished to repatriate the applicant to the Kurdistan region of Iraq, stated that 'the homosexual relationship that he claimed to have had would not prevent him from settling there'.

The ECtHR judgment

The Court rejected the applicant's Article 3 complaint.

In respect of the aspect of the complaint relating to the homosexual relationship, the Court stated that it was 'aware of the very difficult situation for real or perceived homosexuals in Iraq and that these difficulties are present also in the Kurdistan Region'. 

However, it went on to state 'that the applicant has expressed the intention of living with his wife and children'. 

The Court stated that more importantly 'the applicant did not make this claim until he appealed against the Migration Board’s negative decision on his asylum application, more than one year after his arrival in Sweden. Moreover, no mention of the relationship in question was made in the present proceedings before he replied to the Government’s observations, almost a year and a half after lodging the application to the Court. In this connection, it is noteworthy that, in that application, he stated that there were threats against him emanating from Al-Tawahid and Al-Jihad, but did not even mention the Mujahedin'.

The Court stated that it agreed with the Migration Court that the applicant did not give a reasonable explanation for the delay in making this claim in the domestic proceedings. 

The Court concluded: 'Having regard to all the circumstances, including the similar delay in the present proceedings, the Court considers that the applicant’s claim concerning the homosexual relationship is not credible'.

How do you prove homosexuality?

What is astonishing about the ECtHR's judgment is that it ostensibly suggests that the applicant was fabricating a homosexual relationship in order to persuade the Swedish authorities to grant him asylum.  

Yet what is not 'credible' about the applicant's complaint? 

It is very easy to understand why a man from a country where there is well documented violence and persecution of homosexuals did not reveal his previous homosexual relationship to the authorities. 

Furthermore, given the social and cultural construction of homosexuality in Europe as well as the Middle East, it seems highly credible that a married man would attempt to keep a homosexual relationship secret from his wife with whom he wished to continue a relationship. 

It appears that both the Swedish authorities and the Court were unable to accept that it is socially normative for many individuals in heterosexual relationships to engage in homosexual sexual relationships. It also appears that they were unable to accept that it is socially normative for men and women to not want to disclose information about homosexual relationships for fear of persecution. 

This failure to acknowledge the reality of many homosexual sexual relationships - whether in the Middle East or elsewhere - is highly problematic in its disregard for the lived experience of millions of men and women around the world who are unable to publicly acknowledge this aspect of their lives.

However, a further problematic aspect of this case is that even when the applicant did reveal his homosexual relationship the authorities did not believe him. 

This raises broader and long standing questions about how individuals who have suffered persecution for homosexuality are able to demonstrate that they are, as the Court puts it, 'real' or 'perceived' homosexuals?

How exactly does one 'prove' homosexuality to asylum authorities and the Court?

Whilst immigration authorities in European states have been reported to be increasing pressure on lesbian and gay asylum seekers to prove their sexual orientation, the applicant in this case faced an even greater challenge because he never claimed to be gay.

Whilst sexual orientation is impossible to materially prove, the Court has established that 'real' homosexuality is a 'manifestation of the human personality'. 

However, given that the applicant was not claiming to be a 'real' homosexual, what could he have provided to the Court that would have proved a previous homosexual relationship? 

The circumstances of the case suggest that it was always highly unlikely that any evidential artefacts (letters, photographs etc.) were ever going to be available to prove the existence of an intimate relationship. All the applicant had at his disposal was his account of the relationship and its consequences. 

The Court's judgment suggests that it interpreted all of the facts given by the applicant in his account as evidence of deception: the fact that the applicant was married and wished to remain married, the fact that he did not immediately reveal the homosexual relationship, and his explanation for the delay in providing details about it were all taken as evidence of falsehood. 

One wonders if the Court understands the nature and experience of homophobia. Given that the Court acknowledged that it was 'aware of the very difficult situation for real or perceived homosexuals in Iraq' it is therefore entirely problematic to regard the applicant's concealment of a homosexual relationship as suspicious. 

The very act of concealing a homosexual relationship could have been read by the Court as evidence of the applicant's fear of homophobia instead of being regarded as a ground for disbelieving him. 

This case raises an important question: to what extent is it reasonable to dismiss a complaint that hinges on a fear of serious homophobic treatment because an applicant demonstrates a key 'symptom' of homophobia, a desire to conceal homosexuality?