New case in the European Court of Human Rights concerning residency of a same-sex couple in Switzerland

The Third Section of the European Court of Human Rights has communicated the case of B and C v Switzerland, which concerns a complaint by a same-sex couple regarding the refusal of a residence permit.

The facts

Mr B is a national of Gambia who wished to obtain a residence permit on the basis of his registered same-sex partnership with Mr C, a Swiss national. However, the residence permit was refused owing to Mr B having a criminal conviction and his conduct in Switzerland.

Mr B has made a previous application to the Court regarding the refusal of the Swiss authorities to grant him asylum, which I wrote about in April 2017.

The complaint to the Court

The complaint to the Court concerns the refusal of the residence permit, under Article 8 of the Convention. It also concerns the expulsion of Mr B to Gambia, under Article 3 of the Convention.

Questions to the parties

The Court has asked the parties the following questions:

1. If the expulsion order against Mr B were enforced, would it be possible, in practical terms, that he be deported to a country other than Gambia, notably Mali? If so, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention in that country?
2. In the light of the claims and the documents which have been submitted, would Mr B face a risk of being subjected to treatment in breach of Article 3 of the Convention if he were deported to Gambia? In particular, having regard to the Court’s finding in I.K. v. Switzerland ((dec.), no. 21417/17, § 24, 19 December 2017), is there a real risk that the first applicant would face ill-treatment at the hands of the Gambian authorities? Is there a real risk that he would be criminally prosecuted? Is there a real risk that he would face ill-treatment at the hands of non-state actors and, if so, would the Gambian authorities be willing and able to provide protection to him (see, in particular, J.K. and Others v. Sweden [GC], no. 59166/12, § 98, 23 August 2016)?
3. Has the refusal of a residence permit to Mr B been, and would the enforcement of the expulsion order against him be, in violation of Mr B and Mr C's right to respect for their private and family life, contrary to Article 8 of the Convention? In particular, was the refusal of a residence permit to Mr B, and would his removal be, proportionate in view of the finding that Mr B and Mr C could continue to live their relationship, inter alia, through regular visits of Mr B to Switzerland? In the event that the only country to which Mr B could be deported were Gambia, did the criminalisation of homosexual acts in that country, irrespective of whether such acts are prosecuted at present, and the Court’s findings in Dudgeon v. the United Kingdom (22 October 1981, Series A no. 45) and Norris v. Ireland (26 October 1988, Series A no. 142) have to be taken into account in the balancing exercise in the present case? In the event of the determination that Mr B would not face a real risk of being subjected to treatment in breach of Article 3 of the Convention based on his sexual orientation if he were deported to Gambia, would any foreseeable difficulties which he may encounter there on the ground of his sexual orientation have to be taken into account in the balancing exercise, again having regard to the Court’s finding in I.K. v. Switzerland (cited above, § 24)? Have the domestic courts engaged in a thorough balancing of the interests in issue, taken into account all relevant circumstances of the case and attached adequate weight to them, and is this reflected in the reasoning of their decisions (see, in particular, I.M. v. Switzerland, no. 23887/16, 9 April 2019)?

Context

As I have previously written here, this case 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 66 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 on the grounds of sexual orientation.

This, as I argued back in 2015 here, amounts to a shameful history.

I have recently published (with Dr Silvia Falcetta) the article "Migration, Sexual Orientation, and the European Convention on Human Rights", in the Journal of Immigration, Asylum and Nationality Law, that provides an analysis of the Court's jurisprudence on sexual orientation and asylum.