This guest post is written by Sander Steendam.
In M.E. v. Sweden, the fifth section of the Strasbourg Court has ruled that requiring aliens to temporarily return to their home country and hide their sexual orientation pending family reunion is not a violation of article 3 of the Convention (prohibition of torture, inhuman and degrading treatment).
Mr. M.E. is a Libyan national who arrived in Sweden in July of 2010. He immediately requested asylum because of criminal charges against him in Libya for the illegal transport of weapons and because of fear of retribution from the clans he originally transported the weapons for. In February of 2011, he added to his application for legal residence that he was now married to a man in Sweden named N. He had introduced N. to his family via webcam, but had originally presented him as a woman (N. is a transgender person).
Under the Swedish family reunion procedure, M.E. would have to return to Libya and request family reunion from there. M.E. feared however that he would be persecuted and ill-treated in Libya because of his sexual orientation. He therefore called upon an exception in Swedish law, which allows persons from whom it cannot be reasonably required that they travel to another country to stay in Sweden while awaiting the result of the family reunion procedure. Although this exemption request is thus to be distinguished from the asylum request, it is the same fear of persecution that inspires it and the Court applied the same reasoning to it.
The Swedish immigration authorities rejected M.E’s asylum request regarding the fear of criminal charges and retribution from the Libyan clans, stating that his story lacked credibility and that he had failed to substantiate a real risk of persecution. Regarding his family reunion request, the Swedish authorities found that it was not unreasonable to require M.E. to submit the application from Libya and denied him the benefit of an exemption.
M.E. submitted an application to the European Court of Human Rights arguing that if he were forced to return to Libya this would constitute a violation of article 3 of the Convention. He claimed that besides the general hostility towards LGBT persons in Libya, his family had also become aware of the fact that he was in a same-sex relationship and had threatened to kill him.
Regarding M.E.’s asylum request, the Court agreed with the Swedish government that M.E. had failed to substantiate a real and personal risk. Regarding his family reunion request, the Court began by stating that M.E.’s sexual orientation and the seriousness of his marriage to N. were uncontested by the Swedish government (which, as Judge De Gaetano points out in his separate opinion, is not entirely true). The Court continued its analysis by applying a criterion set out by Swedish law, which was in turn inspired by the judgment of the Supreme Court of the United Kingdom in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department. According to this criterion, the Court has to establish whether or not the applicant would have hidden his sexual orientation even without the threat of persecution. For example because of social pressure from his friends or family. If this is the case, the asylum request (or in this case the exemption request) may be rejected. In light of this criterion the Court stated that by presenting N. as a woman to his family, the applicant had made an active choice to live discreetly not because of fear of persecution but due to private considerations.
Furthermore, the Court noted that although same-sex behaviour is punishable by imprisonment in Libya, there insufficient evidence that Libyan authorities actively persecute based on sexual orientation. The Court also stressed that it was only a temporary expulsion awaiting the result of the family reunion procedure, which should only take about four months. Even if the applicant would thus have to be discreet about his private life during this time, it would not require him to conceal an important part of his identity permanently or for any longer period of time. This, the Court found, cannot by itself be sufficient to reach the threshold of Article 3 of the Convention.
If this judgment had come out ten years ago, it’s likely that it would not have raised an eyebrow since it would have been in line with the standing jurisprudence of the Court and of the Committee against Torture at that time. Today however, as also Judge Power-Forde points out in her (once again right on the mark) dissent, this judgment is severely out of tune with other international developments. The Court based its judgment on three interrelated and equally contestable elements.
Firstly, although same-sex behaviour is criminalised in Libya there is insufficient evidence of persecution based on sexual orientation. Both the Human Rights Committee and the Committee against Torture have accepted that even if there is no evidence of active persecution based on sexual orientation, the mere existence of provisions criminalising same-sex behaviour is sufficient to engage an expulsing state’s non-refoulement obligation.
Secondly, even if there were a situation of persecution in Libya that would only mean that M.E. would have to be discreet about his sexual orientation for about four months. The European Court of Justice and the Supreme Court of the United Kingdom have both dismissed the idea that LGBT asylum seekers can be rejected based on the premise that they could live perfectly safe lives in their home countries if they only remain discreet. The Court does refer to these judgments but subsequently applies their rulings incorrectly. It introduces an element of duration that is not to be found in either judgment. As long as it is only temporary, one can according to the Court be expected to hide one’s sexual orientation. Power-Forde correctly notes that hiding one’s sexual orientation means a lot more than simply refraining from sexual conduct. What the Court is asking of M.E. is that he lies on a daily basis about his marriage, his life plans, what his interests are, who his friends are, why he is in Libya and why he wants to go back, etc.
Thirdly, M.E. had already chosen to be discreet in any case not for fear of persecution but due to private considerations. The UK Supreme Court has indeed ruled that an asylum application may be rejected if the applicant is discreet for reasons other than fear of persecution. The Court gives great weight in that regard to the fact that M.E. presented N. as a woman to his family and as such “made an active choice to live discreetly”. The Court has thus apparently decided to ignore M.E’s statements that his family is now aware that he is in a same-sex relationship and has threatened to kill him. It is unclear whether the Court does so because it does not believe these claims, since it does not address them in its assessment. Even if the Court had expressly dismissed the claims as unsubstantiated, the criterion itself is also susceptible to criticism and it is unfortunate that the Court seems to have adopted it. That criterion holds that LGBT persons who live in countries where there is persecution based on sexual orientation but who live there discreetly not because of fear of that persecution but because of other reasons such as social pressure can be returned to their home country. This social pressure was not found to reach the level of torture or degrading treatment by the UK Supreme Court. In countries where there is persecution based on sexual orientation however, social pressure and the fear of persecution go hand in hand. It is very likely that “discreet LGBT persons” in those countries are discreet both because of social pressure and because of fear of persecution. There is also a problem of evidence, as it is unclear to me how one establishes that a certain person lives discreetly solely because of social pressure and not because of fear of persecution. Certainly not by demonstrating that he has not informed his family about his sexual orientation (yet), as the Court accepted in this case.
With this judgment, the Court diverges from the course that other national and international jurisdictions have taken by holding on to a decade-old line of reasoning. It is to be hoped, for all involved, that it does not plan to stay that course for much longer.