(21 October 2022) African Rainbow Family and Stonewall have filed an intervention this afternoon to the European Court of Human Rights, with respect to an application of a gay man challenging his proposed removal by the Swiss authorities to Iran (M.I v Switzerland Application no.56390/21) .
Stonewall and African Rainbow Family have submitted there is a real risk of serious harm to gay refugee applicants from Iran, drawing from the UK Home Office’s own June 2022 Country Policy Information Note accepting persecution/article 3 ECHR risk of ‘openly’ gay men. The most recent country evidence cited in the CPIN report records 79 executions from 2004 to 2020. In September 2022, there has additionally been the reporting of the sentencing to death of two lesbian activists.
The written submissions also make clear the need to address imputed (perceived) risk to gay applicants, based on their inability to ‘prove straight’. This can require them to adopt various measures, in order not to be identified as gay by the perceived persecutor (‘the silence fallacy’). The submissions argue both actual and imputed risk need to be addressed in protection claims. Stonewall’s testimonials from Afghan Refugee claimants (analogous to the position of Iranian applicants due to similar social, cultural and religious norms), provided a strong and powerful evidential source with respect to impact of these persecutory measures (e.g. forced (opposite-sex) marriage, dressing to conform to birth assigned gender), were subjected to in order to attempt evade identification and consequent serious harm.
These proceedings also highlight the indirect discrimination of gay applicants, contrary to Articles 8 and 14 ECHR, due to the application of conduct on return to their claims. The Intervenors argue the facially neutral procedure, as is shown from the Swiss example, disproportionately is applied to gay applicants, and applicants who hold a religious belief, when they are not applied to other Refugee Convention/protection claims (nationality, political opinion, race and other Particular Social Group claims). The Intervenors submit membership of a targeted group should be the only required protection pathway (Salah Sheekh applied).
Jaqueline McKenzie, Partner and Head of Immigration at Leigh Day and Co, instructed 33 Bedford Row’s Dr S Chelvan, Head of Immigration and Public Law, leading Haydee Dijkstal, Deputy Head of International Law, to draft the intervention submissions. Dr Chelvan’s pupil, Holly Armstrong, assisted.
Link to copy of Written submissions, 21 October 2022.