Thursday, 12 May 2016

European Court of Human Rights once again rejects a complaint by a gay asylum seeker

The European Court of Human Rights has declared the complaint in A.N. v France inadmissible. This continues the Court's established approach of rejecting complaints by gay men and lesbians about Council of Europe states that seek to return them to states outside of Europe that criminalise homosexual acts. 

The applicant, A.N., is a Senegalese citizen born in 1983 who claimed asylum in France after he fled Senegal because of persecution based on his (homo)sexual orientation. He provided the French domestic authorities with evidence that he had been the subject of violence (consisting of, inter alia, a medical certificate that attested to the presence of several scars on his body, and the account of two witnesses confirming that these had resulted from an assault because of his sexual orientation). 

When the French authorities rejected the applicant's asylum application - which the French government stated was based on unverifiable, contradictory and implausible claims - the applicant complained to the Court that if returned to Senegal he would be subjected to ill-treatment in violation of Article 3. Homosexual acts are illegal in Senegal. 

The International Commission of Jurists submitted a very strong third party intervention to the Court last June, urging the Court 
to find that the existence of laws criminalizing consensual same-sex sexual conduct discloses evidence of a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations under that provision of the Convention. In the alternative, at the very least, the Court should find that there is a high presumption that such laws engender such risk and thereby impose the burden on the State to rebut that presumption by proving conclusively the absence of such risk.
The Court's response, in summary, was that, although homosexual acts are prohibited by criminal law in Senegal, this law is not systematically enforced and, furthermore, the applicant had not adduced sufficient credible evidence to show that he would be at risk of treatment contrary to Article 3 of the Convention if returned to Senegal. 

The Court therefore declared the application inadmissible (manifestly ill founded). 

A.N. v France can now be added to the list of cases - which I detailed here - in which a gay asylum seeker has failed to gain any protection under the European Convention on Human Rights.

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