Thursday, 22 October 2015

The European Court of Human Rights and gay asylum seekers: a shameful history?

In light of the recent decision by the European Court of Human Rights in A.E. v Finland - which continued the Court's long-standing refusal to uphold complaints about Council of Europe states who seek to deport gay men and lesbians to countries that criminalise homosexual acts and, in some cases, punish them with death - I have produced a summary of Strasbourg decision-making in this area since 1998. 

What this clearly demonstrates, in my view, are the various ways in which the Strasbourg organs have avoided creating any precedent that would provide those who seek asylum from persecution because of their sexual orientation with protection under the Convention. The Court has, for instance, often declared complaints inadmissible on the ground that an applicant could, once they were returned to their home country, be "discrete" about their sexual orientation. It has declared complaints inadmissible on the ground that it did not accept that the threat to an applicant was significant, despite the existence of criminal laws prohibiting all homosexual acts between adults. And it has, as in A.E. v Finland, struck complaints from its list because a government has, at the eleventh hour, granted an applicant a residence permit - this, despite the fact that, even when a complaint is resolved or discontinued by an applicant, the Convention requires the Court to "continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires" (Article 37). 

As long ago as 1978, the Court said that its 
"judgments [...] serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties" (Ireland v the United Kingdom). 
The Convention has been in force for 62 years and the Court has contributed nothing 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. 

The message the Court currently sends to gay men and lesbians outside of Europe is this: if you are living in a country that criminalises you for being gay, and potentially puts you at risk of ill-treatment or death, and you manage to travel to a Council of Europe state that, on your arrival, wants to send you home, you have no protection against deportation under the European Convention on Human Rights. 

Whatever the reasons for the Court's approach to applications relating to asylum on the grounds of sexual orientation discrimination - be they judicial or, as is more likely, political (see the reference to "pragmatic" decision making in F. v the United Kingdom, below) - it is difficult to reach any other conclusion that the Court's reluctance to develop positive human rights protection in this area is shameful.


And now, a chronological summary of the complaints...

1998

In 1998 the former European Commission of Human Rights issued its decision in Sobhani v Sweden which concerned an application lodged in 1996 by an Iranian citizen who had arrived in Sweden in 1994 and applied for asylum. In May 1995 the National Immigration Board rejected the asylum application and ordered the applicant's expulsion to Iran. The applicant's appeal was rejected by the Aliens Appeals Board in 1996. 

In his complaint to the Commission, the applicant - invoking Articles 2, 3 and 8 of the Convention - claimed that he would be arrested and executed upon return to Iran on account of his homosexuality. 

In 1998, the Government quashed the expulsion order and granted the applicant a permanent residence permit. The Government requested that the Commission strike the application out of its list of cases and the applicant expressed the wish to withdraw his application. The Commission decided "as regards the issues raised in the present case, the Commission finds no reasons of a general character affecting respect for human rights, as defined in the Convention, which require the further examination of the application" and struck the case from its list.

2004 (I)

In 2004 the Court dealt with a complaint relating to asylum and homosexuality in F. v the United Kingdom. The applicant, an Iranian citizen born in 1973, and resident in Glasgow, had entered the United Kingdom illegally in April 2001 and, in May 2001, claimed asylum on the basis that he feared persecution as a homosexual. He stated that 
"security forces had come to his house because of a satellite television and had become suspicious of the double beds, which he used with his homosexual partner, along with his cousin and his partner. According to his account, all four were arrested for having a satellite dish and detained for four days and beaten. His partner confessed to being homosexual and they were remanded in custody. After being held in prison for three months and four days, he was released on the payment of bribes by his family who feared that he would face the death sentence as a homosexual". 
The applicant's application for asylum in the UK was unsuccessful and, at time the Court considered his complaint, he was subject to expulsion to Iran. 

The Court deemed the applicant's complaint inadmissible. In respect of Articles 2 and 3 of the Convention, the Court stated that 
"[a]lthough it must be acknowledged that the general situation in Iran does not foster the protection of human rights and that homosexuals may be vulnerable to abuse, the applicant has not established in his case that there are substantial grounds for believing that he will be exposed to a real risk of being subjected to treatment contrary to those Articles". 
In respect of Article 8 of the Convention, the Court stated that 
"[i]nsofar as it is apparent that [the applicant] would live under a ban against homosexual adult consensual relations, which would in Contracting States disclose a violation of Article 8 of the Convention [...], [o]n 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".
2004 (II)

In I.N.N. v the Netherlands, the Court declared inadmissible a complaint by an Iranian national who, in 2001, had applied for asylum in the Netherlands. The applicant claimed, inter alia, that, in Iran in 2001 he had been caught by a policeman when he was kissing a male friend in an alley. He was arrested and taken to the vice squad police office where his particulars were recorded and his fingerprints taken. He was forced to write and sign a statement in which he declared that he was a homosexual and that he had been caught in flagrante delicto. After having been raped by this policeman, he was released the next day. He was told by the policeman that he should report daily to him at the vice squad police station. The applicant further stated that this policeman had raped him on two further occasions when he had reported to him at the police station. The applicant also claimed that, in March 2001, he had attended a protest meeting in the course of which films had been shot and photographs taken, including photographs of the applicant in the company of a good friend. This friend was arrested at the meeting and released on the next day. In April 2001, the friend's body was found in a ditch. The words “freedom of expression has this as a consequence” had been written on the body. 

The Court stated:
"[a]lthough it is not disputed in the abstract [...] that very draconian punishment can be imposed for homosexual acts, the Court is not persuaded that the applicant has shown that he is at a real risk of falling foul of the authorities on that ground. While he claimed that he had been arrested after having been caught kissing a male friend in an alley in [...] 2001, there is no indication that this has in fact resulted in any criminal proceedings being brought against him. Although it must be acknowledged that the general situation in Iran does not foster the protection of human rights and that homosexuals may be vulnerable to abuse, the applicant has not established in his case that there are substantial grounds for believing that he will be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention on grounds of his homosexuality".
2012

In the A.S.B. v the Netherlands, the Court struck from its list the complaint by a Jamaican applicant who, in December 2009, had applied for asylum in the Netherlands, stating that he feared persecution and treatment contrary to Article 3 of the Convention in his country of origin on account of his homosexual orientation. He was refused asylum for three years but, subsequent to his complaint to the Court, eventually granted an asylum-based residence permit. The Court stated that, "[a]s no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination", it would strike the case from its list. 

2013

In 2013, the Court dismissed the complaint in M.K.N. v Sweden in which the applicant, a native of Mosul in Northern Iraq, complained about a refusal for asylum by the Swedish Migration Board. The applicant, a married man whose wife and two children were living in Syria, claimed asylum in Sweden on the grounds that, inter alia
"after his departure from Iraq, the Mujahedin had found out that he had had a homosexual relationship and that, as a consequence, his partner had been stoned to death. The Mujahedin had also been looking for the applicant in 2009 due to this relationship. He had not revealed this information earlier as he had not been aware that homosexual relationships were accepted in Sweden. Despite this relationship, his intention was to continue living with his wife". 
The Court declared the complaint inadmissible - I wrote about the case more fully here - and, in doing so, stated that "[h]aving regard to all the circumstances [...] the Court considers that the applicant’s claim concerning the homosexual relationship is not credible".

2014/15

In M.E. v Sweden - which I wrote about here - 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. The applicant 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 was to be found in respect of Article 3 where it 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".
Judge Power-Forde (Ireland) dissented, arguing "[t]his Court has held that to deprive a person of his reading glasses for a few months reaches the required threshold under Article 3 [...] Something doesn’t fit".

In November 2014 the Court announced that the complaint would be referred to the Grand Chamber for consideration at the applicant's request. In the light of new information concerning the situation in Libya, and noting that the Court had referred the applicant’s case to the Grand Chamber, the Swedish Migration Board decided to examine the applicant’s case again and to determine whether there were impediments to returning him to Libya. In December 2014, the Migration Board granted the applicant a permanent residence permit in Sweden.

The applicant - for various reasons which I discussed here - asked the Grand Chamber to continue its consideration of the complaint, not least to scrutinise the Chamber's earlier judgment. The Grand Chamber rejected all of the arguments advanced by the applicant. Focusing entirely on the present situation of the applicant (as someone who had been granted residence in Sweden) the Grand Chamber stated that it did 
"not need to enquire retrospectively into whether a real risk engaging the respondent State’s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment". 
The Grand Chamber gave a simple reason for not examining the previous decisions of the Swedish authorities or the reasoning of its own Chamber: "[t]hese are historical facts but they do not shed light on the applicant’s current situation".

2015

On the 22 September 2015, the Fourth Section of the Court struck the complaint in A.E. v Finland from its list. In Finland, the applicant, an Iranian gay man, had applied for asylum a number of times and, between 2008 and 2015, his applications were continually rejected. He was informed that, although homosexual acts were criminalised in Iran, that 
"Iran was a relatively tolerant country as concerned homosexuality, as long as it was not exercised in public. Even though the death penalty could be imposed, the threshold for conviction was very high". 
On 1 April 2015 the Immigration Service again rejected the applicant’s asylum application (his fourth) but granted him a continuous residence permit for work for a period of one year starting from the decision date. The residence permit may be renewed.

In his complaint to the Court, the applicant invoked Article 3 of the Convention and argued that "he feared ill-treatment or torture if removed to Iran as he was homosexual". He stated that the Iranian police had evidence of his sexual orientation (in the form of photographs and videotapes) and that his homosexual friends had already been arrested. He reminded the Court that, in Iran, homosexual acts are punishable by the death penalty.

The Government suggested that the circumstances allowed the Court to reach the conclusion that the matter had been resolved, thereby justifying the discontinuation of the examination of the application. The applicant disagreed with the Government and claimed that he would still be in real and imminent danger if removed to Iran. He stated that the fact that he had been granted a work-based residence permit did not take away the human rights violation.

In a similar way to how the Grand Chamber responded in M.E. v Sweden, the Court resolved the applicant's complaint in the following way:
"The Court notes that the applicant has been granted a continuous residence permit valid for a period of one year with a possibility of renewal. He is thus no longer subject to an expulsion order [...] There is no risk of any imminent refoulement as the applicant has been granted a continuous residence permit in Finland."
The Court concluded that there were "no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the present application". 






Friday, 16 October 2015

ECtHR again 'dodges' ruling on the merits of gay asylum complaint in A.E. v Finland

The European Court of Human Rights has again dodged the question of whether attempting to return a gay man or lesbian to a country that criminalises homosexual sexual acts amounts to a violation of the European Convention on Human Rights.

On the 22 September 2015, the Fourth Section of the Court struck the complaint in A.E. v Finland from its list. The complaint was brought by an applicant who is a Kurd by ethnic origin and a Muslim. The applicant realised in his early childhood that he was homosexual and, in his home village, had four homosexual friends who, in October 2008, were arrested by the police at a private party which the applicant did not attend. The next day the applicant’s father called him and told him that the police had come looking for him and had searched the house. On 15 October 2008 the applicant left Iran for Turkey where he spent over a month. He then flew to Stockholm and continued from there to Finland.

In Finland, the applicant applied for asylum a number of times and, between 2008 and 2015, his applications were continually rejected. He was informed that, although homosexual acts were criminalised in Iran, that "Iran was a relatively tolerant country as concerned homosexuality, as long as it was not exercised in public. Even though the death penalty could be imposed, the threshold for conviction was very high".

On 1 April 2015 the Immigration Service again rejected the applicant’s asylum application (his fourth) but granted him a continuous residence permit for work for a period of one year starting from the decision date. The residence permit may be renewed.

In his complaint to the Court, the applicant invoked Article 3 of the Convention and argued that "he feared ill-treatment or torture if removed to Iran as he was homosexual". He stated that the Iranian police had evidence of his sexual orientation (in the form of photographs and videotapes) and that his homosexual friends had already been arrested. He reminded the Court that, in Iran, homosexual acts are punishable by the death penalty.

In a similar way to how the Grand Chamber responded in M.E. v Sweden, the Court resolved the applicant's complaint in the following way:
"The Court notes that the applicant has been granted a continuous residence permit valid for a period of one year with a possibility of renewal. He is thus no longer subject to an expulsion order [...] There is no risk of any imminent refoulement as the applicant has been granted a continuous residence permit in Finland."
This is another example of the Court adopting an "all's well that ends well" approach to resolving a complaint about the systematic failure of a Contracting State to provide adequate protection for a person who, if returned to their home state, would be at risk of ill-treatment and death.

It is a woefully inadequate response, from the world's leading human rights institution, because it fails to address the fact that for seven years the applicant was under the threat of being deported to a country where, because of his sexual orientation, he would be at risk of capital punishment. Moreover, his residence in Finland remains temporary and, therefore, uncertain. 

The Court had the opportunity to declare that a Council of Europe state that attempts to return a gay man to a country that criminalises homosexual sexual acts is acting contrary to human rights and fundamental freedoms. It should have declared the complaint admissible and gone on to find a violation of Article 3 of the Convention. The fact that the Court repeatedly decides not to do this should be a reminder that it is often reluctant and conservative in its support of the human rights of gay men and lesbians. Specifically, it reminds us that the Court remains unwilling to lay down the precedent that attempting to deport gay men and lesbians to countries that would brutalise and murder them is a violation of human rights.