The deportation of a homosexual to Gambia without assessing the dangers he faced because of his sexual orientation in that country constitutes degrading treatment
JUDGMENT
B. and C. v. Switzerland 17.11.2020 (app. no. 43987/16 and 889/19)
SUMMARY
Same-sex couple. One of the two partners was in danger of returning to Gambia after his partner’s application was rejected by the Swiss authorities for family reunification. He claimed that he was in danger of being mistreated if he returned.
The Court held that the criminalization of homosexual acts was not sufficient to make the return contrary to the Convention. However, the Court found that the Swiss authorities had not adequately assessed the risk of ill-treatment of the first applicant as gay in Gambia and the availability of state protection against ill-treatment by non-state actors. Several independent authorities noted that the Gambian authorities were reluctant to provide protection to LGBT people.
The ECtHR ruled that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR if the first applicant was deported to the Gambia and awarded a fine of EUR 14,500.
The Court also held that the suggestion to the Government of interim measures should remain in force until this judgment becomes irrevocable.
PROVISIONS
Article 3
Article 8
PRINCIPAL FACTS
The applicants, Mr B and Mr C, are a Gambian and a Swiss national who were born in 1974 and 1948
respectively and lived in St Gall (Switzerland) together until the second applicant’s death on
15 December 2019.
The first applicant had been in Switzerland since 2008. His application for asylum was rejected, as
the authorities found his claims of previous ill-treatment not credible.
In 2014 the applicants registered their partnership. The second applicant lodged a request for family
reunification in respect of the first applicant. The application was rejected. On appeal, the Office for
Security and Justice of the Canton of St Gall (“the OSJ”) denied Mr B the right to stay in Switzerland
during the family-reunification proceedings. That decision was ultimately upheld by the Federal
Supreme Court, which also noted his criminal record in the Canton of Lucerne and his time spent in
prison. Mr B remained in Switzerland for the duration of the family-reunification proceedings,
following the indication of an interim measure by the European Court.
Subsequently, the OSJ decision was upheld regarding family reunification. The Federal Supreme
Court stated that the first applicant had a family network he could rely on in the Gambia, where the
situation for homosexuals had improved. It did not believe that the first applicant’s sexual
orientation would come to the attention of the Gambian authorities or population. It furthermore
noted that he was not well-integrated in Switzerland, and referred to his criminal record. It held that there was a “major public interest” in the applicant’s leaving the country and that the interference with his rights was justified.
Relying on Articles 3 (prohibition of inhuman or degrading treatment) the first applicant complained
that his return to the Gambia would expose him to the risk of ill-treatment. Relying on Article 8 (right
to respect for private and family life) the first and second applicants complained that deportation
would interfere with their family life.
THE DECISION OF THE COURT
The Court joined the applications. It ruled that there were no special circumstances requiring the
examination of the second applicant’s application following his death.
Article 3
The first applicant submitted that he had left the Gambia because of the active persecution of
homosexuality, which was central to his identity. Homosexual acts remained illegal.
The Court reiterated that legislation prohibiting homosexual acts did not render removal to that
county contrary to the Convention. It noted that it was not disputed that he was a homosexual, but
agreed with the domestic courts that his claims of past ill-treatment were not credible.
It noted that the first applicant was still in Switzerland, and so the present-day situation in the
Gambia had to be examined. It considered that a person’s sexual orientation formed 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. The first applicant’s sexual orientation could be discovered if he were
removed to the Gambia. The domestic authorities had held the contrary and furthermore had not
assessed whether the Gambian authorities would be able and willing to provide the necessary
protection to the first applicant against ill-treatment caused by his sexual orientation by non-State
actors. The United Kingdom Home Office and the third-party intervenors, among others, stated that
the Gambian authorities were currently unwilling to provide protection for LGBTI people in that
State.
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 the Convention.
Article 8
The applicants claimed that the first applicant’s expulsion would disrupt their protected right to
family life and that hiding his homosexuality would infringe his right to private life.
The first applicant acknowledged that the second applicant’s death had changed those
circumstances, but he nevertheless asserted that he wanted to continue to live in and visit the
environment that he had shared with his former partner.
The Court considered that given, in particular, that the question of the physical separation of the
two applicants was no longer pertinent, there was no need to give a separate ruling under this
Article.
Just satisfaction (Article 41)
The Court held that Switzerland was to pay the applicant 14,500 euros (EUR) in respect of costs and
expenses.
