B and C v Switzerland: ECtHR finds a Convention violation in case of removal of a homosexual applicant to the Gambia

Tuesday, November 17, 2020

On 17 November 2020, the European Court of Human Rights ruled that Switzerland had violated Article 3 ECHR in the case of a Gambian homosexual person who faced removal to the Gambia (application nos. 43987/16 and 889/19).
Mr. B, a Gambian and Malian national, unsuccessfully applied for asylum in Switzerland. His applications and subsequent appeals were rejected on credibility grounds, and the situation of homosexuals in the Gambia was in itself not considered sufficient to qualify for refugee status. The Federal Administrative Court even underlined that there was no need to assess the situation of homosexuals in the Gambia, notwithstanding that homosexuality carries a 14-year prison sentence there. Finally, an appeal court found that B was not entitled to refugee status based on the registered partnership that he had with Mr. C, a Swiss national.
The second applicant, C, died in the course of the proceedings and the Court decided to strike his application out of the list and not to consider his complaints regarding Article 8 ECHR.  
Mr. B complained that his return to the Gambia would expose him to the risk of ill-treatment under Article 3 ECHR. More specifically, he feared the active persecution of homosexuality in the country, notwithstanding the improved situation for LGBTI-people since the election of a  new, more LGBTI-friendly president in 2016. 
In its assessment, the ECtHR referred, inter alia, to the findings of the CJEU in X, Y and Z v. Minister van Immigratie en Asiel and the ECtHR’s previous case law, thereby stating that the mere existence of laws criminalising homosexual acts in the country of destination, does not render an individual’s removal to that country contrary to Article 3 ECHR. However, it also considered that a person’s sexual orientation forms a fundamental part of his or her identity and that no one should be obliged to conceal his or her sexual orientation in order to avoid persecution. Thereby, the Court underlined that B’s sexual orientation could be discovered if he were removed to the Gambia and that the Swiss authorities had not assessed whether the Gambian authorities would be able and willing to protect LGBTI-people against ill-treatment by non-State actors. For these reasons, the Court concluded that the Swiss courts had failed to sufficiently assess the risks of and State protection against ill-treatment from non-State actors, leading to a violation of Article 3.
ECRE, ILGA-Europe and ICJ intervened in this case.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Inhuman or degrading treatment or punishment
Non-state actors/agents of persecution
Sexual orientation