M.K.N. v Sweden - a failure of empathic imagination?

I am delighted to post an insightful and thoughtful commentary by Dr. Loveday Hodson on the recent judgement in M.K.N. v Sweden. Many thanks to Loveday for taking the time to write this excellent piece.

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MUTED RESPONSES TO ALLEGED HOMOSEXUAL VICTIMISATION IN M.K.N. v. SWEDEN: A FAILURE OF EMPATHIC IMAGINATION?

During this, the hottest period the UK has seen in some years, I am compelled to respond to Paul Johnson’s urgent call in this blog for more heat in the discussion on the European Court of Human Rights’ recent judgment in M.K.N. v Sweden.  I am, in particular, drawn to the failing that his critique implies in the legal imagination, a failing that stifles law’s capacity to respond empathically to suffering.

The facts of the case are set out concisely in that author’s post; but, to briefly restate, the case concerned the potential deportation of a married Iraqi man who had entered Sweden in 2008 and unsuccessfully applied for asylum.  Among his claims, and of particular relevance to readers of this blog, was his contention that a homosexual relationship he had had in Iraq, discovered by the Mujahedin, meant that his deportation would involve a violation of Article 3 of the Convention.  He contended that his partner in that relationship had been stoned to death.  As presented by the Court, this aspect of the applicant’s claim was made belatedly in the proceedings before both national and international tribunals.  Further, it was a claim unsubstantiated by supporting evidence.  Consequently, the Court had little difficulty in rejecting it.

Johnson is clearly troubled by the resounding silence that has greeted this judgment, a judgment that he finds leaves a number of questions unanswered.  I have to confess, I have had some difficulty in sharing his chagrin with the Court on this particular occasion.  In his first commentary on this judgment, Johnson professed himself troubled by the question: how could the applicant in this instance prove his homosexuality?  As he acknowledges, however, the actual question posed by the Court was rather different: had the applicant adduced evidence capable of proving there existed substantial grounds to believe that, if returned to Iraq, he would be at real risk of treatment contrary to Article 3 as a result of a previous homosexual relationship?  The Court was quite clear that he had failed to do so.  No evidence was forthcoming that the applicant had been in a homosexual relationship, let alone that the relationship had come to the attention of the Mujahedin and consequently placed him at real risk of ill-treatment.  The applicant contended this aspect of his claim was made belatedly as he had not known that homosexuality was accepted in Sweden.  The Court responded that it was satisfied that the asylum process had been confidential and accessible to the applicant.

The applicant made no bones of the fact that he intended to continue to live a heterosexual, married life.  Johnson argues in his second post on this judgment, “the fact that the applicant did not claim to be a homosexual should not diminish the validity or legitimacy of his complaint about potential persecution based on a previous homosexual relationship”.  Here Johnson seems to rather misrepresent the Court’s position.  The Court did not say that a homosexual encounter could not lead to a successful non-refoulement claim by a married person.  Rather, it held that the applicant’s stated intention to live a married and heterosexual life meant that, if internally relocated, there were no grounds established to demonstrate that his previous relationship would place him at risk.  In fact, the Court barely addressed this point, and placed much greater emphasis on the fact that this aspect of the claim was not made until after the initial asylum application was unsuccessful and it was also included in the initial application to the Court.  In short, the applicant’s claim lacked credibility.

My initially reading of this judgment left me largely unperturbed by its outcome.  And yet, and yet…

In common with Johnson, I do find that the all-too-swift dismissal of the applicant’s stated vulnerabilies sits uncomfortably.  There is something dehumanising about the Court’s analysis of the applicant’s claim.  Firstly, my discomfort lies in the sociologically-informed knowledge that individuals face a herculean task when asked to prove wrongs at an international level.  Without support or resources, the task is an almost impossible one.  As Johnson rightly notes, this is only compounded in cases that require applicants to surmount feelings of shame and majoritarian repression.  These difficulties form the background to the enormous numbers of inadmissible applications to the Court that we lawyers pay scant attention to.

Perhaps more forceful yet, however, is my sense that the Court found that this applicant has failed somehow in the implicit task of fitting his sexuality into a category that would perhaps have made little sense to him.  Without the process of consciously labelling oneself as gay – a process, I would argue, that is specifically Western – how would one ever become recognised (to adopt the Court’s phrase) as a ‘real’ homosexual?  What does this term mean?  The applicant may well not have been truthful about his homosexual relationship – that much is clear. Empathic imagination, however, demands that we are at least able to ask the question, ‘what if…?’  That is almost certainly the question that the legal imagination, in its demands for certainty, cannot bear to confront.

Now more prepared to acknowledge the difficulties and unanswered questions in this case, on second-reading the Court’s application of its case-law seems less sure-footed.  In fact, it becomes clear that the Court never seriously considered whether the applicant could safely return and internally relocate in spite of his homosexual relationship.  It was clear that the Court was simply not persuaded that the relationship had taken place at all.  Was it right to end its analysis where it did?  The Court acknowledged that asylum seeker’s face particular difficulties in substantiating their claims, and therefore they should be afforded “the benefit of the doubt when it comes to assessing the credibility of their statements” (para. 27).  The Court has previously held that “when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies” (Collins and Akaziebie v Sweden).  In this case, what such information presented that would shift the burden of proof?  The only explanation appears to be the applicant’s tardiness in the making of the claim.  This, I would suggest, was insufficiently strong reason to shift the burden of proof to him.