European Court of Human Rights judgment rules gay man from Iran cannot be deported from Switzerland – 33 Bedford Row Chambers Barristers instructed on behalf of the Interveners.
On 12 November 2024, the European Court of Human Rights (‘ECtHR’) published its judgment in the case of a gay man challenging deportation from Switzerland to Iran (M.I v Switzerland Application no.56390/21).
33 Bedford Row’s Dr S Chelvan, Head of Immigration and Public Law, leading Haydee Dijkstal, Head of International Law, were instructed by Jaqueline McKenzie, Partner and Head of Immigration at Leigh Day and Co to draft the written submissions for African Rainbow Family and Stonewall, who had been granted by the Court status as Interveners. The issues of law arising from these proceedings will apply to all 46 countries, including the UK, when determining protection claims from gay applicants seeking sanctuary in Council of Europe Member States.
The ECtHR’s judgment (unanimously) declared that “in view of the domestic courts’ failure to sufficiently assess the risk of ill-treatment for the applicant as a homosexual person in Iran or whether State protection against ill-treatment from non-State actors was available in Iran, his return to Iran without a fresh assessment of those aspects of his case would breach Article 3 of the Convention.” (see, para 57 and reasons).
In setting out the ECtHR’s assessment and reasons, the Court acknowledged that the parties agreed that the applicant is homosexual, that this is a fundamental part of the applicant’s identity, and that homosexuals in Iran are at risk from both State and non-State actors. With this in mind, the Court addressed and confronted the premise of discretion – that the applicant could avoid persecution by concealment or exercising ‘restraint.’ The Court found fault in the Swiss authorities “view that it was unlikely that his sexual orientation would come to the knowledge of the Iranian authorities or population and that he therefore faced no real risk of ill-treatment” (para 55) – a position by the State authorities rooted in the assumption that the applicant could sufficiently conceal his or her identity in order to remain safe upon return.
Here, the Court found that “whether or not the applicant’s sexual orientation is currently known to the Iranian authorities, family members or the population, it could be discovered subsequently if he were to be removed to Iran” (para 50), therefore raising the question of whether the Swiss authorities sufficiently addressed “whether the Iranian authorities would be able and willing to provide the applicant with the necessary protection against ill-treatment on grounds of his sexual orientation at the hands of non-State actors” (para 55). To this, the Court found that the Swiss authorities were wrong to “not carry out an assessment of the availability of State protection against harm at the hands of non-State actors” under the assumption that “it was unlikely that his sexual orientation would come to the knowledge of the Iranian authorities or population” by virtual of the application own efforts of concealment and discretion (para 55).
Looking to sources indicating that “the continued criminalisation of same-sex sexual conduct in Iran” would make it “unreasonable to expect an LGBTI person to seek protection from the authorities” or to expect the Iranian authorities to provide with “effective protection” against all potential non-state actors (para 56), the Court therefore found that the “Swiss authorities therefore failed to carry out the necessary assessment and ignored the issue that underpinned the applicant’s claims” (para 55).
Dr Chelvan, Head of Immigration and Public Law at 33 Bedford Row Chambers, said in response to paragraph 55 of the judgment “the UK Supreme Court in the 2010 binding guidance case of HJ (Iran) and HT (Cameroon) v the Secretary of State of the Home Department [2010] UK SC 31; [2011] 1AC596 continues to apply discretion reasoning to asylum and Article 3 ECHR protection claims in the UK. This morning’s judgment from the Strasbourg Court makes clear that notwithstanding discretion reasoning, a real risk of return is determinative in granting international protection to those seeking sanctuary in Council of Europe Member States. This is a landmark judgment to finally end discretion reasoning disproportionately applied in the United Kingdom to gay applicants.”
The full judgment can be read here.
Stephanie Motz, from the Swiss law firm RISE Attorneys at Law, lawyer for MI provided information on the case: See Linkedin post here. MI was also represented by Olivier Peter of the law firm Peter & Moreau See also Linkedin post of UNHCR – who was the other intervener ‘Discretion not required!’
- Intervention submitted by African Rainbow Family and Stonewall, 21 October 2022 - a summary can be read here.
The intervention submitted to the Court the following:
First, the interveners submitted the real risk of torture to gay men returning to Iran, where the UK Courts have accepted since 2005 there is a real risk of persecution/ill-treatment on return.
Second, the interveners additionally invited the Court to address a ‘perception pathway’ as a basis on which an applicant can be afforded protection, one based on imputed Convention reason and the applicant’s inability to successfully conform to the required gender-sex role stereotype held by the potential persecutor, leading to risk on return.
Third, the interveners’ final legal issue addressed the continued negative decisions based on discriminatory discretion reasoning to gay applicants. This included how the Strasbourg Court had the opportunity to address the protection claims of those seeking sanctuary on the basis of their sexual identity, not just from Switzerland, but from any country including the UK where discretion reasoning is applied to refuse a claim for sanctuary. The interveners’ full Written Submissions of 21 October 2022 can be found here.
The ECtHR acknowledged the intervention of Stonewall and African Rainbow Family, noting in particular at paragraph 41 the Interveners’ submissions as to the reality of the situation for a homosexual man returned to a state such as Iran. The Court noted the Interveners’ submissions that this would include requiring the applicant to effectively prove that he is heterosexual in order to live discreetly – carrying the risk that failure to fit the heterosexual stereotype of the potential persecutor would mean that return would give rise to a risk contrary to Article 3 of the Convention.
African Rainbow’s Press release can be read here.
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