EHRM, 17-11-2020, nr. 889/19, nr. 43987/16

In 2008 the first applicant applied for asylum in Switzerland under a different identity and claiming to be from Mali. After his application was rejected and the removal order against him became final, he went missing and was thus not deported.

On 24 March 2013 the first applicant lodged a second asylum application, this time under his correct identity and claiming to be a national of both the Gambia and of Mali. He based that asylum application on his homosexual orientation and the situation of homosexuals in the Gambia. He claimed to have had covert relations with different men there. In 2008, he had been caught performing a sexual act in a hotel and had been arrested by the police. He feared criminal prosecution and being sentenced to fourteen years' imprisonment. He managed to escape during his transfer to prison and left the country immediately. Some two years ago, he met his partner, C, in Switzerland.

On 20 February 2014 the (then) Federal Migration Office rejected the asylum application and ordered the first applicant to leave Switzerland.

On 12 December 2014 the Federal Administrative Court rejected the first applicant's appeal in so far as it concerned his request for asylum. It concurred with the Federal Migration Office that the first applicant's account was not credible. It considered, inter alia, that he had invoked entirely different identities and claims in his two asylum applications. In his written second asylum application he had mentioned risks if his sexual orientation became known in the Gambia, and only referred to the incident in the hotel during the oral hearing. He presented a Gambian passport with a scan of his signature issued in Banjul in 2012, which his sister had allegedly obtained for him. It was not plausible that the authorities would have issued him with a passport while criminal proceedings had been pending against him. In sum, the first applicant had not substantiated that he had been persecuted, or been at risk of persecution, at the time he left the Gambia.

The Federal Administrative Court went on to find that the first applicant was also not entitled to refugee status based on the registration of his partnership with the second applicant. There was no indication that the Gambian authorities had been aware of his sexual orientation at the time he left the country. The Swiss authorities did not inform them of the registration of the partnership. Nor were there any indications that the first applicant had made his sexual orientation public or been in close contact with same-sex groups and organisations in Switzerland. While the situation for homosexuals was difficult in the Gambia, homosexual orientation was not in itself sufficient to make a person qualify for refugee status. Asylum-seekers had to evince a concrete risk of ill-treatment, and the first applicant had failed to do so.

In so far as the appeal concerned his removal, the Federal Administrative Court found that the latter had become devoid of purpose: the Federal Migration Office had in the meantime set aside the removal order in view of the family reunification proceedings lodged and pending before the cantonal authorities, which had jurisdiction to rule on the first applicant's removal (see paragraphs 14---8211---15 below).

On 4 May 2015 the first applicant lodged a third asylum application, pointing to the deterioration of the situation of homosexuals in Gambia since the adjudication of his previous application. Moreover, he was afraid that his family, who was aware of his sexual orientation, would denounce him. The State Secretariat for Migration rejected the application on 14 August 2015.

On 16 November 2016 the Federal Administrative Court dismissed the first applicant's appeal in so far as it concerned the refusal of asylum. It found credible that he was homosexual. It did not find credible, by contrast, his account as regards his family, which was full of contradictions. In the first asylum proceedings he had claimed that his parents had died when he was a small child and that he had two sisters, who lived in Mali and the Ivory Coast. In the second asylum proceedings he had claimed that his father had died in 2010 and that he had only one sister, who lived with his mother in the Gambia. In the third asylum proceedings he claimed to have several brothers and further family members in the Gambia. Moreover, in the second asylum proceedings he had claimed that he had never had any problems in the Gambia other than the incident at the hotel. In the third asylum proceedings he claimed to have been ill-treated and ostracised by his family. It did not seem credible that the second applicant would support the first applicant's family with monthly money transfers if the family situation was the way it was now alleged to be.

The Federal Administrative Court endorsed the assessment of the State Secretariat for Migration that the first applicant had not revealed any information, either in Switzerland or in the Gambia, potentially apprising the Gambian authorities of his homosexuality. It was not convinced that the Gambian authorities would deduce from the second applicant's money transfers and their shared address that they were in a same-sex relationship. Moreover, the first applicant had claimed that he would not talk about his relationship when he spoke to his relatives in the Gambia. Nor had he been in close contact with same-sex groups or organisations. In conclusion, no assessment was required of the situation of homosexuals in the Gambia. Lastly, the determination whether the first applicant should be allowed to remain in Switzerland or should be removed, fell within the competence of the cantonal authorities.

On 12 August 2014 the second applicant lodged a request for family reunification, that is, for a residence permit to be granted to the first applicant in view of their registered partnership (see paragraph 2 above).

On 10 February 2015 the migration office of St. Gallen Canton denied that request, having regard to the first applicant's criminal record and conduct. It ordered the first applicant to leave the country, adding that he would have to await the outcome of the appeal proceedings from abroad.

On the second applicant's appeal of 21 February 2015, the proceedings were split into two sets: one concerning the question whether or not the first applicant would be allowed to remain in Switzerland during the family reunification proceedings (leading to application no. 43987/16) and one concerning the merits of those proceedings, that is, the question whether or not to grant a residence permit to the first applicant (leading to application no. 889/19).

By letter of 3 October 2019 the authorities were informed that the second applicant's state of health had significantly deteriorated. According to a medical certificate of the St. Gallen Cantonal Hospital, he was being treated with palliative chemotherapy and the remaining life expectancy was limited. Further deteriorations were to be expected in the following weeks and months and in this situation the first applicant's support was essential.

By letter of 27 November 2019 the migration office of St. Gallen Canton confirmed that the state of health of the second applicant would be taken into account, if necessary, when determining the date of removal of the first applicant; he did not have to leave Switzerland as long as the second applicant required his support.

The second applicant died on 15 December 2019. Both the Government and counsel for the applicants informed the Court of the death, by letters of 19 December 2019 and 2 January 2020, respectively.

The relevant provisions of the Aliens Act, in so far as relevant, provide as follows:

section 17 — Regulation of the period of stay until the permit decision

section 42 — Family members of Swiss nationals

section 51 — Expiry of the right to family reunification

section 52 — Registered partnership

section 62 — Revocation of permits and other rulings

section 63 — Revocation of the permanent residence permit

Joined cases X, Y and Z v Minister voor Immigratie en Asiel (Joined Cases C-199/12 — C-201/12, judgment of 7 November 2013) concerned asylum-seekers, who claimed that they had reason to fear persecution in their respective countries of origin — Sierra Leone, Uganda and Senegal — on account of their homosexuality, which was a criminal offence in those countries. It had not been shown that they had already been persecuted or been subject to direct threats of persecution in the past. In its conclusions, the CJEU held:

On 23 August 2012 UNHCR issued the ‘Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ (HCR/GIP/12/09). They state, inter alia, the following (footnotes omitted):

In its Concluding Observations of 30 August 2018 (CCPR/C/GMB/CO/2), the United Nations Human Rights Committee expressed concern that consensual same-sex relationships were criminalised and that lesbian, gay, bisexual, transgender and intersex persons reportedly continue to be subject to arbitrary arrest and violence. It stated that the Gambia should decriminalise same-sex relationships between consenting adults and take measures to change societal perception of lesbian, gay, bisexual, transgender and intersex persons and protect them from arbitrary arrests and violence.

Several stakeholders in the Universal Periodic Review process stated that lesbian, gay, bisexual, transgender and intersex persons continue to face discriminatory laws, stigma and harassment and that the legislation criminalising same-sex relations and the social stigma created a climate of fear that translated into persons being forced to stay in the closet, and bread a climate of extortion, corruption and further abuse of LGBTI persons (see the Summary of Stakeholders' submissions on the Gambia, Working Group on the Universal Periodic Review of the United Nations Human Rights Council, A/HRC/WG.6/34/GMB/3, 16 August 2019, at paragraphs 20---8211---21).

The United Kingdom Home Office's country information and guidance note ‘The Gambia: Sexual orientation and gender identity or expression’ of August 2019, which analysed and assessed publicly available information, stated, inter alia, the following (footnotes omitted):

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

Following the death of the second applicant on 15 December 2019, of which both parties informed the Court (see paragraph 33 above), the Court notes that no heir or close relative has shown an interest in pursuing his part of application no. 889/19.

In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of application no. 889/19 in respect of the second applicant. It is therefore appropriate to strike that application out of the list in so far as the second applicant is concerned (Article 37 § 1 (c) of the Convention).

The first applicant complained under Article 3 of the Convention that on his return to the Gambia he will run a real risk of ill-treatment due to his sexual orientation. Article 3 of the Convention reads as follows:

Initially, the applicants had alleged that the refusal of a residence permit to the first applicant and the expulsion order against him, if implemented, infringed their right to respect for their family life, as guaranteed by Article 8 of the Convention. They argued that it was not possible for the second applicant to relocate to the Gambia, as he required continuous medical treatment for cancer; rather, in these circumstances, the support given to him by the first applicant was crucial. In order to avoid persecution in the Gambia, the first applicant would be required to maintain contact in a covert manner; yet, he could not be required to deny their relationship. Moreover, being required to suppress and hide his sexual orientation would infringe his right to respect for private life.

Following the second applicant's death during the proceedings before the Court, the first applicant acknowledged that the question of regular contact with the late second applicant no longer arose. His expulsion would nonetheless breach the right to respect for private life and family life: he would lose the opportunity to be where the memories of his late partner were. He had to have the right to visit his grave, to maintain the contacts he made through him, including his sisters, and to move in familiar, shared surroundings. He had lived in Switzerland for twelve years and integrated well into society, and now had a perfect command of the German language. He was financially independent thanks to the security provided by his late partner, including an apartment and pension benefits, but would nonetheless like to work. His conviction by the Lucerne Criminal Court was based on an offence committed in 2011, prior to his relationship with his late partner; he had behaved correctly in recent years. In the Gambia he could not count on family support, notably his sister may not help him out of fear of being attacked herself. The situation of homosexuals in the Gambia had to be taken into account. He would have to keep his relationship with the late second applicant secret, and would be unable to enter into a new relationship. Balancing the competing interests, which the domestic authorities had not done in a sufficiently thorough manner, led to the conclusion that he had to be allowed to stay in Switzerland.

Article 8 of the Convention, in so far as relevant, reads as follows:

The Government submitted that the question of physical separation and maintaining contact between the applicants and a violation of the right to respect for family life no longer arose following the second applicant's death. The latter's state of health had been taken into account by the authorities when they had set the date by which the first applicant had to leave Switzerland. The exercise of Article 8 rights concerning family and private life pertained, predominantly, to relationships between living human beings (see Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, § 104, 20 September 2018). The first applicant's ties to Switzerland and to the persons whom he knew thanks to his relationship with the late second applicant fell exclusively within the scope of the right to respect for private life.

They added that the first applicant, who had earlier exclusively relied on his relationship to the late second applicant, claimed to have established ties to Switzerland, to have learned German and to be willing to work only after the latter's death. His submissions in this respect lacked detail or were even contradicted by established facts: professional training programmes were discontinued owing to a lack of motivation on his part, and he had dropped out from a German language class at beginner's level A1 shortly before the Federal Supreme Court's judgment in 2018, after having been in Switzerland for ten years and in a relationship with the late second applicant for five years. Given his financial situation and the fact that he owned an apartment, it would be easily possible for the first applicant to travel to Switzerland to visit the late second applicant's grave and to maintain contact with family and friends; he could also maintain such contact via modern means of communication. Similarly, he could easily resettle in the Gambia. The living conditions which the first applicant would face in the Gambia as a homosexual had already been taken into account in the Article 3 assessment and were, in the Government's submission, compatible with that provision; these conditions could not in themselves constitute a bar to his removal under Article 8. There was considerable public interest in removing the first applicant in view of his criminal conviction and behaviour. The domestic courts had thoroughly balanced the competing interests.

Having regard to the facts of the case, in particular the fact that the first applicant remained in Switzerland during the proceedings before the Court — in compliance with the interim measure indicated by the Court under Rule 39 of the Rules of Court — and that the question of the physical separation of the two applicants no longer arises after the second applicant's death, and its finding that the first applicant's removal to the Gambia would breach Article 3 of the Convention in view of the domestic courts’ failure to sufficiently assess the risks of ill-treatment for him as a homosexual person in the Gambia and the availability of State protection against ill-treatment emanating from non-State actors, the Court considers that there is no need to give a separate ruling on the admissibility and merits of the complaint under Article 8 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if the reference of the case to the Grand Chamber has not been requested; or (c) the panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.

It considers that the indications made to the Government under Rule 39 of the Rules of Court (see paragraph 21 above) must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection.

Article 41 of the Convention provides: