Saturday, 28 June 2014

M.E. v Sweden - European Court of Human Rights endorses expulsion of a gay man to a country that criminalises homosexuality

The European Court of Human Rights has continued its long-standing approach of rejecting complaints from homosexual applicants who face expulsion to countries that criminalise homosexual sexual acts.

In M.E. v Sweden, a Libyan national currently living in Sweden complained to the Court about his threatened expulsion from Sweden to Libya where, he alleged, he would be at risk of persecution and ill-treatment because he is a homosexual. 

Mr. M.E. arrived in Sweden as an illegal migrant in 2010 and claimed asylum. In 2011 he married a man who has permanent residence in Sweden.  

Swedish authorities repeatedly rejected Mr. M.E.'s application for a residence permit. They concluded that he could be returned to Libya where he could apply for family reunion with his spouse.

The Libyan Penal Code makes all same-sex acts illegal, with a maximum punishment of imprisonment for five years. 

Mr. M.E. argued that expelling him to Libya would violate his rights under Article 3 of the Convention because as a homosexual he would be at risk of persecution and ill-treatment. He further argued that returning him to Libya and separating him from his spouse would violate his right to respect for family life under Article 8 of the Convention. 

The Court rejected both aspects of the complaint, but its most significant reasoning is to be found in respect of Article 3.

Rejecting the applicant's Article 3 complaint, the Court concluded that:

the present case does not concern a permanent expulsion of the applicant to his home country but only a temporary return while the Migration Board considers his application for family reunion [...] [E]ven if the applicant would have to be discreet about his private life during this time, it would not require him to conceal or supress an important part of his identity permanently or for any longer period of time [...] [T]he Court finds no reason to believe that the applicant’s sexual orientation would be exposed so as to put him at risk of treatment contrary to Article 3 (§ 88-89).

The Court has therefore reiterated its previously stated view that returning a gay man to a country that operates a total prohibition on homosexuality does not in itself amount to a violation of Article 3 because the individual can conceal his sexual orientation (in this case for a limited period) to avoid any ill-treatment.

Given that the Court has repeatedly held since 1981 that the mere existence of criminal laws in contracting states that prohibit homosexual acts is a violation of the Convention, the view that it is acceptable to return individuals to countries outside of the convention system which continue to criminalise homosexual acts must be regarded as severely problematic.

In my view, the Court should evolve its jurisprudence to acknowledge that laws which criminalise consensual homosexual acts between adults amount, in principle, to a violation of Article 3 because, by their very existence, they degrade and dehumanise those subject to them



Although this is a very problematic judgment, there is something in it that is a significant cause for optimism (although it will not benefit Mr. M.E.) in the form of the Dissenting Opinion of Judge Power-Forde (Ireland). 

Judge Power-Forde brilliantly articulates why the Court's judgment is wrong and persuasively argues why the Court needs to change its approach:

The Court is required to consider whether the respondent State may expel, even temporarily, a person whose sexual orientation would expose the individual concerned to a real risk of treatment that violates Article 3 in his or her country of origin if that person were to be open about his or her sexual orientation.

[...]

The majority in this case has concluded that even if the applicant has ‘to be ‘discreet’ about his private life’ for some time following his expulsion to Libya, this would not involve a permanent or protracted suppression or concealment of an important part of his identity and thus would not reach the threshold necessary to violate Article 3 of the Convention (§ 88). I disagree with the majority’s approach and conclusion. The fact that the applicant could avoid the risk of persecution in Libya by exercising greater restraint and reserve than a heterosexual in expressing his sexual orientation is not a factor that ought to be taken into account.

[...]

The majority’s conclusion in this case does not ‘fit’ the current state of International and European law on this important question of fundamental human rights. Recent developments, based as they are upon the recognition of the equal value and dignity of all persons regardless of their gender identity or sexual orientation, are to be welcomed [...] Having recited those developments in its judgment, the majority then reverts to the old ‘reasonably tolerable’ test laid down by this Court over a decade ago. It considers that the ‘discretion’ requirement for a certain period of time in order to avoid persecution is tolerable. Its rationale is that such a requirement for a homosexual person does not involve a permanent or protracted concealment or suppression of an important part of personal identity.

[...]

The reasoning is flawed and unconvincing. With this judgment, the Strasbourg Court introduces a new test of ‘duration’ that is not to be found elsewhere in comparative European law. 

[...]

There are other flaws in the majority’s approach. There is an assumption, at least, an implicit one, that sexual identity is, primarily, a matter of sexual conduct which – if not publicly displayed or discussed by the applicant – would eliminate any risk of harm being visited upon him. Sexual orientation is, of course, something far more fundamental than sexual conduct and involves ‘a most intimate aspect of private life’ [...] It is inherent to one’s very identity and it may be expressed in a myriad of ways. The practical consequences for this applicant of the requirement that he be ‘discreet’ when returned to Libya are nowhere considered in the judgment. At the most basic level, if a gay man were to live discreetly, he would, in practice, have to avoid any open expression of his sexual orientation. He would have ‘to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised’. Not only would he be unable to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted and committed to another man in a foreign jurisdiction.

In finding that the ‘discretion’ requirement is insufficient ‘to reach the threshold of Article 3’, where, one wonders, does the majority find the yardstick to measure the level of suffering which this applicant would find reasonably tolerable? How would the majority measure the equivalent level for a straight man forced to suppress his sexual identity for many months or longer? [...] The answer surely is, as Lord Rodger stated, ‘that there is no relevant standard since this is something which no one should have to endure’ [...]

Finally, the majority’s approach ignores the fact that even if the applicant succeeds in hiding his sexual orientation after expulsion to Libya, the risk of discovery of the truth is not, necessarily, a matter determined entirely by his own conduct. Apart from the distress of having to lie about and conceal important aspects of his personal life on a regular basis, the applicant would be obliged to travel to a Swedish Embassy in Egypt or Algeria for an interview. Homosexual acts are criminalised, directly or indirectly, in those countries. It is inconceivable that the interview process for family reunification could be conducted without disclosure of his sexual orientation. This clearly carries the risk that his sexual orientation—perceived as ‘criminal’—would be disclosed to the authorities at that point and his carefully woven cover ‘blown’.

This Court has held that to deprive a person of his reading glasses for a few months reaches the required threshold under Article 3 [...] Depriving this applicant of his dignity for a similar or longer period by expecting him to hide an intrinsic part of his identity for fear of persecution does not. Something doesn’t fit. It is more than a minor inconvenience for the applicant to do as the majority requires. Having to hide a core aspect of personal identity cannot be reduced to a tolerable bother; it is an affront to human dignity—an assault upon personal authenticity. Sexual orientation is fundamental to an individual’s identity and conscience and no one should be forced to renounce it—even for a while. Such a requirement of forced reserve and restraint in order to conceal who one is, is corrosive of personal integrity and human dignity.

Thursday, 5 June 2014