In B & C v Switzerland (application no. 43987/16 and 889/19) the European Court of Human Rights has unanimously held that the deportation of asylum seekers to countries where they risk persecution for their sexual orientation would violate the Article 3 prohibition on torture and inhuman or degrading treatment under the European Convention on Human Rights (ECHR).

A decade on from the landmark UK Supreme Court case of HJ (Iran) which brought a person’s sexual orientation more squarely under the protection of the Refugee Convention, this is the first time the Strasbourg court has found that governments have a “positive obligation” under Article 3 to those seeking protection from ill-treatment on account of their sexual orientation. 

The important point to take away from this case is that a state will be in breach of Article 3 if it does not conduct a proper investigation of both state and non-state risk on return for lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

We welcome this landmark ECHR ruling in B and C v Switzerland: People at risk of serious harm because of their sexual orientation cannot be required to hide it. https://t.co/C408dYDSUG

— UKLGIG (@UKLGIG) November 19, 2020

Gay asylum seeker from Gambia

The first applicant, B, had a criminal record and the Swiss authorities wanted to deport him to Gambia. B argued twice before the Swiss authorities that he could not be sent back to Gambia due to persecution he would face on return as a gay man.

In 2014, B’s first claim was refused as lacking credibility. The Swiss appeal court upheld those findings, and went on to conclude that while the situation for gay people was “difficult” in Gambia — a country in which “homosexual acts” can carry a 14 year prison sentence and state-sponsored homophobic violence is rife — sexual orientation alone was not enough to attract protection under the ECHR. Someone seeking protection in Switzerland needed to show a “concrete risk of ill-treatment”, which the national court held was not present in B’s case.

B made a second asylum claim and in 2016 the Swiss authorities accepted that he was gay, but did not believe that his sexual orientation would come to the attention of the Gambian authorities. The Swiss authorities rejected B’s account that his family were aware he was gay, and so held he could “live discreetly” on return.

Having made these findings, the Swiss courts decided that they didn’t need to consider what the risk actually looked like on return to Gambia. B could go back to Gambia, be discreet, and hope for the best. They did not assess whether he would be at risk from the community outside his family, and whether he would be protected by the authorities if so. This was despite ample evidence from respected sources showing that protection in a country that criminalised homosexuality was unavailable.

On living discreetly

The European Court of Human Rights began by reaffirming how fundamental a person’s sexual orientation is to their identity, and that no one should be forced to conceal it. Concealing one’s identity by “living discreetly” is often not a long-term option: the court noted that at some point B might decide to look for a new partner. (Tragically, B’s partner in Switzerland, the second applicant C, passed away in late 2019.) As such, the court disagreed with the Swiss courts’ findings that B could live discreetly. 

The court accepted B’s sexual orientation claim as genuine but did not believe B’s account of past persecution that was advanced before the lower courts. That didn’t matter, though, as the principal issue before them was future risk. Given the evidence of widespread homophobia in Gambia, the key question for a decision-maker was whether B would be protected by the authorities if his sexual orientation became known. 

Inadequate assessment of risk

The Swiss courts, by not considering B’s risk beyond the Gambian state and his family, had not properly investigated whether B would face ill-treatment on return, or whether protection from the state against the community was available — as they are obliged to ensure the prohibition of Article 3 treatment isn’t breached.

At paragraph 62, the court held:

The availability of such State protection had to be established by the Swiss authorities proprio motu [without request] (see J.K. and Others v. Sweden, cited above, § 98). However, having taken the view that it was not likely that his sexual orientation would come to the attention of the Gambian authorities or population – an assessment with which the Court disagrees – and that he did thus not face a real risk of ill-treatment, the domestic authorities did not engage in an assessment on the availability of State protection against harm emanating from non-State actors. 

As such, deporting B to Gambia without this assessment was a breach of Article 3. 

Grasping the Article 3 nettle

The human rights court has previously been reluctant to afford Article 3 protection to LGBTI asylum seekers. Its approach to past cases on the issue has been described elsewhere as “shameful”.

One reason for this resistance may be indirectly to do with the court’s chronic backlog of cases. For many past applicants, by the time their case is actually heard, the protection issue has been dealt with by other means, rendering it unnecessary to deal with the substance of the matter. It may have been because of B’s protracted legal battle (he has been in Switzerland since 2008) that the court decided to take action on an issue it has long avoided.

It is also positive to see the court taking a cautious approach to the “living discreetly” issue. Many UK asylum claims by LGBTI people are refused because the authorities decide that the person could conceal their sexual identity on return “for reasons other than fear of persecution”. But predictions of future behaviour are tricky — and as the court noted, risk of discovery does not necessarily come down to the person’s own conduct. That no one can completely guarantee discretion is a helpful disclaimer for future sexual orientation claims.