Asylum/ arbitrary refoulement

(Application no. 889/19), 18 December 2019

Find here the communicated case.

Find here the judgement.

Find here our press statement regarding the judgement.

• The applicant is a national of Gambia. He is in registered same-sex partnership with a Swiss national. The applicant complains about the refusal of a residence permit and his impending expulsion to Gambia where he would face a risk of being subjected to treatment in breach of Article 3 of the Convention.
• ILGA-Europe together with the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists (ICJ)  submitted the following:
  • Criminalization of consensual same-sex sexual conduct is incompatible with international human rights standards and is discriminatory. Besides, the absence of data on the implementation of criminal law may in itself be evidence of oppression and threats suffered by LGBTI persons.
  • Concealment constitutes evidence of the objective well-foundedness of a subjective fear of persecution. Requiring coerced concealment of someone’s same-sex sexual orientation – as a way, purportedly, to mitigate the real risk of their being exposed to Article 3 prohibited treatment – constitutes pain and suffering amounting to proscribed treatment under Article 3 even if temporary. Mental harm resulting from fear of exposure to physical harm has been found by the ECtHR to constitute cruel, inhuman and degrading treatment. According to refugee law, in some cases psychological harm is persecutory.
  • Enforcing removals on the basis that the individuals concerned would be expected to conceal their sexual orientation would constitute arbitrary refoulement and thus violate Article 3 ECHR.
  • In Gambia, consensual same-sex sexual activity can give rise to a number of very serious criminal offences, with penalties ranging from seven years to imprisonment for life. In turn, the criminalization of consensual same-sex sexual relations fosters a climate of state-sanctioned homophobia, resulting in abuse, discrimination and violence by state and non-state actors. The mere existence of laws that criminalize consensual same-sex sexual conduct enables, encourages and contributes to the persecutory environment that exists in Gambia and exposes LGBT individuals to real risks of persecutory harm.

On 28 November 2018, the swiss Senate of voted to criminalise hate speech and discrimination on grounds of sexual orientation, but refused to do the same for grounds of gender identity.

ILGA-Europe welcomes the extension of protections against hate speech and discrimination based on sexual orientation – this is an important step forward for lesbian, gay and bisexual citizens of Switzerland. However, the decision of the Senate to explicitly exclude grounds of gender identity constitutes a denial of this protection for trans people, and sends the message that hate speech and discrimination against them is acceptable.

This news is especially disappointing as a few months ago the Swiss parliament had specifically and proactively proposed to include both sexual orientation and gender identity in the extension of the relevant article – which had until now explicitly covered only grounds of race, ethnicity and religion – and passed the inclusion of both grounds in parliament. 

ILGA-Europe’s Rainbow Map shows that legislative and policy protection from discrimination and hate speech on grounds of sexual orientation has been improving across Europe. However, the same cannot be said for grounds of gender identity or expression, which are explicitly protected in just over a dozen countries. While some countries have merely not amended their laws in line with current international standards which provide for explicit protection from discrimination on grounds of gender identity as well as sexual orientation, the Swiss Senate has outright rejected current international standards to explicitly deny these protections for trans people.

ILGA-Europe expresses deep concern for this denial of the human rights of trans people.  We call on the Swiss authorities to amend relevant laws to include protection on grounds of gender identity and also sex characteristics, thus bringing its legislation in line with international standards and ensuring protection from hate against trans and intersex people. 

Asylum/ arbitrary refoulement

(Application no. 43987/16), 24 July 2017 

Find Court’s communication here.

• The applicant complained under Article 3 of the European Convention about his impending expulsion to Gambia. He feared that, owing to his homosexuality, even a temporary return to Gambia would expose him to a real risk of arbitrary detention, imprisonment and torture.
• ILGA-Europe together with the AIRE Centre, the ECRE and the ICJ  submitted that:
  • Concealment is probative of a subjective fear of persecution and constitutes evidence of the objective well-foundedness of that subjective fear . Mental harm resulting from fear of exposure to physical harm has been found by the ECtHR to constitute cruel, inhuman and degrading treatment. Enforcing removals on the basis that the individuals concerned would be expected to conceal their sexual orientation would constitute arbitrary refoulement and thus violate Article 3.
  • In Gambia, consensual same-sex sexual activity, can give rise to a number of very serious criminal offences, with penalties ranging from seven years to imprisonment for life. In turn, the criminalization of consensual same-sex sexual relations fosters a climate of state-sanctioned homophobia, resulting in abuse, discrimination and violence by state and non-state actors. The mere existence of laws that criminalize consensual same-sex sexual conduct enables, encourages and contributes to the persecutory environment that exists in Gambia and exposes LGBT individuals to real risks of persecutory harm.