M.B. v Spain - recently communicated complaint concerning expulsion of an asylum seeker who had a same-sex relationship

The European Court of Human Rights has communicated the complaint in M.B. v Spain. The applicant is a Cameroonian national who was refused asylum in Spain. The applicant complains under Articles 2 and 3 of the Convention that her life and physical integrity will be at risk if she is ever removed to Cameroon. She raises a further complaint under Article 13 of the Convention relating to the effectiveness of domestic remedy.

One aspect of the applicant's complaint concerns a same-sex relationship she had in Cameroon. The relationship had started out as a "secret" but people had found out and informed the applicant’s family. The applicant’s oldest son told her that her family had found out that she was in a relationship with another woman and were threatening her to inform the police about her sexual orientation.

In Cameroon sexual relations with a person of the same sex are criminalized. Article 347 bis 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.

The Spanish authorities had dismissed the issue of the applicant's same-sex relationship on the grounds that "it was very unlikely that people in the village had found out about her homosexual relationship, as it was a secret one" and, in combination with a consideration of other issues, stated that the application for asylum lacked credibility. The General Deputy Director of Asylum concluded that it was not credible that the applicant had faced a situation of “social and familiar harassment” due to her sexual orientation and that there was no evidence that the Cameroonian public authorities were aware of the applicant’s sexual orientation.

* "Est puni d'un emprisonnement de six mois à cinq ans et d'une amende de 20.000 à 200.000 francs toute personne qui a des rapports sexuels avec une personne de son sexe".