European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association

Update from Strasbourg - M.B. v Spain asylum case struck out

M.B.v Spain, a case involving a woman seeking asylum based on her sexual orientation, has been struck out by the European Court of Human Rights.

This decision from Strasbourg means that no judgment from the Court has ever found that deporting someone to a country of origin outside the Council of Europe that criminalises same-sex relations violates the European Convention on Human Rights.

As one of the many civil society groups who had intervened as a third-party in the case, ILGA-Europe regret that the case was another missed opportunity for ECtHR to provide greater clarity on this issue.

In this particular case, a woman from Cameroon applied for asylum in Spain and had her claim rejected as “it was not credible that the applicant had [not] faced a situation of “social and familiar harassment” due to her sexual orientation”. Cameroon currently criminalises same-sex sexual relations and the applicant said that her family had discovered that she was in a relationship with another woman.  The Spanish authorities had dismissed the claim, saying it was “unlikely” people and authorities knew about her relationship as it was a “secret”.

The applicant stated that her life would be at risk if returned and complained to the ECtHR under Article 2 (life), 3 (freedom from torture) and 13 (effective remedy) of the Convention.

Following the application of Rule 39, the applicant’s deportation was suspended. Her asylum application will now undergo a thorough examination by the Spanish Asylum Office. Given that the applicant’s case is being considered under a new procedure, the ECtHR decided to partially strike out and partially found the case inadmissible.  

We are clearly relieved that the person at the heart of M.B. v Spain has the opportunity to stay in Spain, at least temporarily, while her case is under consideration. But there are likely to be many other asylum seekers in a similar position, in other CoE member states, who are wondering what the future holds for them.  

In fact, a similar case is pending consideration before the ECtHR brought by a Senegalese gay asylum seeker in Spain (E.B. v Spain), in which ILGA-Europe, together with other civil society partners, intervened on 16 January 2016. 

As people continue to travel to Europe to seek refuge, national courts are having to review increasing numbers of claims, including applications from LGBTI asylum seekers. No-one should be expected to hide their sexual orientation, gender identity or gender expression. ILGA-Europe (and our civil society partners who also intervened) believe that the Court needs to clear up any ambiguity on this issue when dealing with cases like this.