Deporting a gay man to a country outside of Europe where he would be at risk of ill-treatment violates the ECHR

The Third Section of the European Court of Human Rights has today issued its judgment in B and C v Switzerland, which concerns the case of a gay man (in a same-sex relationship) challenging his deportation to a country (The Gambia) where he would be at risk of ill-treatment because of his sexual orientation. 

For the first time in its history, the Court has held that returning an applicant to a non-European state where they would be at risk of ill-treatment on the grounds of their sexual orientation amounts to a violation of Article 3 (prohibition of torture) of the Convention. 

This is a very significant judgment because, as I outline in the comment section below, it is the first time that a complaint by a gay asylum seeker resisting deportation because of a fear of ill-treatment has been successful in the Court. 

Many posts on this Blog - by me and by guest authors - have bemoaned the Court's previous approach to complaints by gay asylum seekers resisting deportation to countries where they would be at risk. Back in 2015, for example, I discussed the Court's shameful history in this area. 

The facts

The applicants ("Mr B" and "Mr C") registered their same-sex partnership in 2014 in Switzerland, and lived together until Mr C's death in December 2019.

Mr B had earlier applied for asylum in Switzerland (twice) and was refused. The circumstances were complex but, in respect of the claim by Mr B that he would be at risk if returned to the Gambia on the basis of his sexual orientation, the domestic authorities concluded his claims were not credible. Moreover, Mr B was not entitled to refugee status based on the registration of his partnership with the second applicant. 

Mr C subsequently applied for "family reunification" with Mr B - a request for a residence permit for Mr B to stay in Switzerland on the basis of his relationship with Mr C - which was denied because of Mr B's "criminal record and conduct".

In the domestic proceedings, Mr B and Mr C pursued two separate issues: first, the issue of whether Mr B would be allowed to remain in Switzerland during proceedings for "family reunification", which led to application 43987/16 to the Court; second, the issue of the refusal of the residence permit and the decision to deport Mr B to The Gambia, which led to application 889/19 to the Court. 

Approach to the applications

Having regard to the similar subject matter of the two applications (43987/16 and 889/19) the Court found it appropriate to examine them jointly in a single judgment.

Following the death of Mr C, the Court decided it was appropriate to strike application 889/19 out of the list insofar as Mr C was concerned (in accordance with Article 37 § 1(c) of the Convention).

Situation in The Gambia

The Gambian Criminal Code under articles 144, 145 and 147 states that same‑sex relations for men and women are illegal and are punishable by between 5 and 14 years in prison. In 2014 an amendment (144A) was approved by Parliament, and this inserted the crime of ‘aggravated homosexuality’ which is punishable to life imprisonment.

The United Nations Human Rights Committee has "expressed concern that consensual same-sex relationships were criminalised and that lesbian, gay, bisexual, transgender and intersex persons reportedly continue to be subject to arbitrary arrest and violence". In this respect "lesbian, gay, bisexual, transgender and intersex persons continue to face discriminatory laws, stigma and harassment and that the legislation criminalising same-sex relations and the social stigma created a climate of fear that translated into persons being forced to stay in the closet, and bread a climate of extortion, corruption and further abuse of LGBTI persons".  

The United Kingdom Home Office’s country information and guidance notes, inter alia, "[t]he continued criminalisation of same-sex relations means that the arrest, detention and prosecution of LGBTI persons remains a possibility" and "The Gambia is a culturally and religiously conservative country, and sources indicate that there is strong societal intolerance of and discrimination against LGBTI persons". It concludes: "In general, LGBTI persons are likely to face discrimination from state and societal actors which, by its nature and repetition, is likely to amount to persecution".

Complaints to the Court

Mr B complained under Article 3 of the Convention that on his return to The Gambia he would run a real risk of ill-treatment due to his sexual orientation. 

Mr B also complained that the refusal of a residence permit and the expulsion order against him, if implemented, infringed his and Mr C's right to respect for their family life, as guaranteed by Article 8 of the Convention.

Article 3 complaint - judgment of the Court

The Court stated that, since Mr B had not yet been deported from Switzerland, the question of whether he would face a real risk of being subjected to ill-treatment contrary to Article 3 of the Convention upon his return to The Gambia must be examined in the light of the present-day situation.

In this respect, the Court noted that it must assess whether Mr B's personal circumstances are such that he would face a real risk of treatment contrary to Article 3 if he were deported to The Gambia.

The Court determined that Mr B's sexual orientation may be discovered if he were removed to The Gambia (and, in this respect, disagreed with the domestic authorities’ assessment that his sexual orientation would not come to the attention of The Gambian authorities or population).

In respect of Mr B's claims to the domestic authorities about his sexual orientation (which included claims of past persecution) the Court did not see a reason to depart from the assessment of the domestic authorities, which was that they were not credible. The Court stated that, since Mr B was not claiming before the Court to have suffered persecution in the past in The Gambia, the issue of past ill-treatment as an indication for a real risk of ill-treatment in the future was not relevant. 

The Court reiterated that "the mere existence of laws criminalising homosexual acts in the country of destination does not render an individual’s removal to that country contrary to Article 3 of the Convention". 

For the Court, what was decisive is whether "there is a real risk that these laws are applied in practice, which is reported not to be the case in the Gambia at present", although persecution relating to sexual orientation and gender identity by state actors "may also take the form of individual acts of 'rogue' officers" and "LGBTI persons openly expressing their sexual orientation and/or gender identity are likely to face discrimination from State actors".

In respect of non-state actors, Mr B claimed that he would face a real risk of ill‑treatment at the hands of his family. The domestic authorities rejected this claim, and the Court confirmed their view. 

However, the Court stated that "ill-treatment may also emanate from non-State actors other than family members" and reports indicate "widespread homophobia and discrimination against LGBTI persons following years of hatred stirred up by the former President Jammeh". 

A key question for the Court, therefore, was whether The Gambian authorities would be able and willing to provide the necessary protection to Mr B against ill-treatment on grounds of his sexual orientation emanating from non-state actors. 

On this key question, the Court noted the parties disagreed. 

The Court's conclusion was that "the domestic courts did not sufficiently assess the risks of ill-treatment" for Mr B  "as a homosexual person in the Gambia and the availability of State protection against ill-treatment emanating from non-State actors".

On this basis, the Court held that Mr B's deportation to The Gambia, without a fresh assessment of these aspects, would give rise to a violation of Article 3 of the Convention.

Article 8 complaint 

Mr B and Mr C had made complaints under Article 8 (right to respect for private and family life) of the Convention. For various reasons - the fact that Mr B remained in Switzerland during the proceedings before the Court, that the question of the physical separation of Mr B and Mr C no longer arose after Mr C’s death, and the finding of a violation of Article 3 of the Convention - the Court considered that there was no need to give a separate ruling on the admissibility and merits of the complaint under Article 8. 

Comment

The Court's judgment is extremely significant. Gay people, seeking asylum in European countries on the basis of the risk of ill-treatment they face in their home countries (outside of Europe) because of their sexual orientation, have been asking the Court for protection for decades. Until today, the Court has never upheld a complaint by a gay asylum seeker resisting deportation from a Council of Europe state on the grounds of the risk of ill-treatment in their home country because of sexual orientation (Dr Silvia Falcetta and I examined the history of such complaints in the Court here).

Today's judgment, therefore, marks a very important moment in establishing the principle that Council of Europe member states must "sufficiently assess the risks of ill-treatment" that would arise from deporting a gay person to a non-European state and, moreover, must assess what protections the receiving state would provide to the gay person from ill-treatment by non-state actors. If Council of Europe states don't do this, the deportation of a gay asylum seeker will amount to a violation of the Convention.

Today's judgment should also be particularly welcomed for the Court having considered the "bigger picture", in terms of what life is like for a gay person in a country where they are exposed to hostility from "non-state actors". 

There are, however, some significant limitations to the Court's judgment that leave a lot of scope for further progress to be made in the future. 

Most notably, the Court has reiterated its extremely problematic principle that "the mere existence of laws criminalising homosexual acts in the country of destination does not render an individual’s removal to that country contrary to Article 3 of the Convention". Note the word "mere" - the mere criminalization of a person because they choose a sexual partner of the same sex. 

The Court does not apply "the mere existence of laws criminalising homosexual acts" principle to European societies. On the contrary, for nearly four decades, the Court has maintained that "the detrimental effects which the very existence of [...] legislative provisions [criminalizing homosexual sexual acts] can have on the life of a person of homosexual orientation" is a basis for disclosing a violation of the Convention (Dudgeon v the United Kingdom, 1981).

On this basis, in today's judgment, the Court should have found that returning Mr B to a country which has laws in force that criminalize homosexual acts would amount to a violation of Article 8 of the Convention. To not do so maintains a "double standard" long established by the Court, whereby a person may be deported to a country outside of Europe to live in conditions which, if those same conditions where present in a European country, would violate the Convention. As the Court put it in 2004: "On a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of  all the rights and freedoms set out in the Convention" (F. v the United Kingdom).

A further limitation in today's judgment is the lack of substance provided on what counts as risk. The Court has established - which is very welcome - the principle that domestic authorities must sufficiently assess the risks of ill-treatment of a gay person being deported and the availability of state protection against ill-treatment by non-state actors. Note the significance, however, of the Court's conclusion that Mr B's deportation to The Gambia, without a fresh assessment of these aspects, would give rise to a violation of Article 3. The principle of the need for a robust assessment is welcome, but the Court has not established any specific substantive criteria in respect of the risks that LGBT asylum seekers should not be expected to face. The Court has not explicitly said, for instance, that the circumstances in this case met the threshold for a violation of Article 3, only that the Swiss domestic authorities had failed to sufficiently assess the risks of and state protection against ill-treatment from non-state actors (which is what led to a violation of Article 3).

The problem with this, as Silvia Falcetta and I have previously argued, is the very high threshold that the Court has hitherto established in respect of what it will accept as evidence of ill-treatment based on sexual orientation in a country of origin (which contrasts with the lower threshold set by the Court in cases concerning other asylum seekers). In other words, the bar has been placed very high for establishing the potential of real risk under Article 3. Today's judgment - even with its acceptance of the risk from hostility by non-state actors - does not provide clarity on the threshold gay asylum seekers need to reach to establish that their deportation would violate Article 3. In simple terms, it does not tell us what level of ill-treatment the individual needs to be at risk of, or the level of protection the receiving state needs to provide, before a violation of Article 3 is established. 

Relatedly, a further limitation of today's judgment is the Court's willingness to accept the assessment of the domestic authorities of many of Mr B's "personal circumstances". The Court reiterated its position that domestic authorities are best placed to assess the credibility of an individual "since it is they who have had an opportunity to see, hear and assess his or her demeanour". In the context of gay asylum seekers, assessments of "demeanour" have often proved a real problem, leaving asylum seekers struggling with the intractable problem of having to demonstrate (perform) their sexual orientation. In this case, because the Swiss domestic authorities accepted Mr B was gay (which is not always the case in applications such as these) he was not required to prove this to the Court. Moreover, although the domestic authorities rejected his claims about past-persecution, the Court did not, thankfully, consider this central to Mr B's claims about future persecution. But the Court's judgment does not trouble these issues, leaving the domestic authorities free to assess the "demeanour" of gay people, and requiring them to produce evidence of past-persecution, which is often impossible for them to do.