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Persecution and sexual orientation: A.T. v Sweden

20 May 2015

On 19 May The AIRE Centre, along with the ICJ, Amnesty International, UKLGIG and ILGA-Europe, submitted our joint written submissions to the European Court of Human Rights in the case of A.T. v Sweden (Application No. 78701/14).

The case concerns an Iranian national who applied for asylum in Sweden. He claimed that if he was returned to Iran, he would risk being sentenced to death or subjected to torture or ill-treatment because of his sexual orientation.

His application was rejected by the Migration Court of Appeal in Sweden and he complained to the European Court of Human Rights that the decision of the Swedish court violates Article 2 (right to life) and Article 3 (prohibition against torture) of the European Convention on Human Rights.

Our joint submissions focused on the following points:

First, that the obligation to ensure that the risk upon removal be assessed so as to guarantee that the protection of the Convention for the Protection of Human Rights and Fundamental Freedoms be practical and effective, triggering non-refoulement obligations of the Convention.

Second, that requiring coerced, including self-enforced, suppression of a fundamental aspect of identity — as enforced concealment of same-sex sexual orientation entails — is incompatible with the Convention, in particular, Article 3.

We pointed out that sexual orientation is a fundamental aspect of identity. Requiring someone to conceal their same-sex sexual orientation in order to avoid persecution was inconsistent with the human rights and fundamental freedoms enshrined in the Convention.

We also submitted that concealment would constitute pain and suffering that would amount to inhuman and degrading treatment, prohibited by Article 3, citing the recent case of Identoba and Others v. Georgia, where the Court recognised that Article 3 extended to infliction of psychological suffering.

Third, that the criminalisation of consensual same-sex sexual conduct gives rise to a real risk of Article 3 prohibited treatment.

We referred to the repeated recommendations from the UN human rights treaty bodies and independent human rights experts, who have urged States to repeal laws criminalising homosexuality.

These experts have pointed out that criminalisation legitimises prejudice and exposes people to hate crimes and police abuse. There is significant potential for persecution that arises from the mere existence of these laws, even if there hasn’t been a recent record of prosecutions and imprisonments.    

Finally, the significance of the EU asylum acquis and the case-law of the Court of Justice of the European Union, including the joined cases Minister voor Immigratie en Asiel v X (C-199/12), Y (C-200/12), and Z (C-201/12) v Minister voor Immigratie en Asiel.

We relied inter alia on the decisions of the European Court of Human Rights in Identoba and Other v Georgia and Ulke v Turkey.

 

Read our full submissions here

Read the case of Identoba and Other v Georgia

 

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