States cannot refuse asylum claims by LGBTQI+ people based on the ‘discretion test’ alone

In M.I. v. Switzerland – 56390/21 (Article 3 – Prohibition of torture : Third Section) [2024] ECHR 862 the European Court of Human Rights has said that failure to properly assess the risk of ill treatment of an LGBTQI+ person in their country of origin and whether state protection was available will breach article 3 of the European Convention on Human Rights. States cannot just assert that a LGBTQI+ person will be safe if returned to their country of origin and told to act discreetly to hide their identity.

The court held that the Swiss authorities were wrong to take the view that it was unlikely that M.I.’s sexual orientation would come to the knowledge of the Iranian authorities or population and that he therefore faced no real risk of ill-treatment. The court also found that the Swiss authorities were wrong to not carry out an assessment of the availability of State protection against harm at the hands of non-State actors, having declared that such a question did not arise in M.I.’s case.

Summary of the facts of the case

The applicant, ‘M.I.’, is an Iranian national. He grew up in a village in Iran in a very religious family. He realised that he was gay in his late teens but concealed his sexual identity out of respect for his family, and for fear of criminal sanctions from the Iranian police. M.I.’s family put pressure on him to marry a woman and encouraged him to consider potential brides.

M.I. entered into a same sex relationship with a person named J.G. M.I. met other gay men through J.G. The couple decided to announce their otherwise secret relationship to these friends by holding a small ceremony and exchanging rings and kisses and providing cake. Some of the friends took photographs of the couple kissing, to the applicant’s dismay.

One of these friends later sent photographs of the ceremony to M.I.’s brother. M.I.’s father and two of his brothers arrived at M.I.’s place of work, showed him the photographs, physically attacked him, and accused the applicant of ruining the family’s honour. They tried to take him away by force. A scuffle ensued. M.I. managed to escape, but he lost his phone. M.I.’s relatives obtained the phone and found photographs of the ceremony on its memory card.

Fearing persecution from his family, M.I. fled to Türkiye. Two months later his boyfriend broke up with him and left Türkiye. Through one of his brothers, the applicant learned that his father and other brothers were planning to come to Türkiye to look for him, so he decided to leave the country.

Swiss proceedings

M.I. then applied for asylum in Switzerland. The Swiss authorities rejected his application on credibility grounds (§35(2)). The Swiss authorities accepted that he was a gay man but found that as the applicant had always hidden his sexual identity and lived discreetly, there was no risk of future persecution or ill-treatment in Iran (§9).

M.I. appealed. The Federal Administrative Court in Switzerland concluded that the applicant’s sexual orientation was not known outside the LGBTQI+ community in Iran. With regard to the situation of gay men in Iran, the court held that although homosexuality was prosecuted by law and there was a potential threat of the death penalty, there was no real risk of serious harm as arrests of gay men rarely resulted in convictions (§10).

The court also held that “a life of discretion would not result in intolerable psychological harm and it was unlikely that the applicant’s sexual identity would be discovered if he continued to live discreetly” (§10). The conclusion was that there was no real risk of persecution if M.I. returned to Iran and continued to live his private life there in a discreet manner.

M.I. applied for a review of this decision arguing that it had overlooked facts such as his registration with UNHCR as a gay man seeking asylum on the grounds of his sexual orientation. The Gay Leadership network also provided further evidence about his fear of other Iranians, including at the asylum processing centre as well as “the extreme pressure of hiding one’s sexual identity for one’s entire life”.

Interim relief preventing his return to Iran was initially granted, then revoked and his case was rejected. This meant that M.I. had exhausted the domestic remedies available to him in Switzerland.

European Court of Human Rights proceedings

M.I. then sought and obtained interim relief from the European Court of Human Rights by way of a Rule 39 order to prevent his removal to Iran pending the outcome of this case. He submitted that in line with existing ECtHR case law “an individual’s sexual orientation is an integral part of their identity, and no one should be compelled to conceal their identity to avoid persecution. (§31)”

He also argued that:

(1) there was no thorough examination of the risk of persecution or ill‑treatment by State agents or of the imposition of the death penalty under the criminal law relating to homosexual relations. There was no rigorous assessment of whether the applicant would face serious harm or death if he lived openly as a homosexual man in Iran;

(2) there was no proper assessment of the risk of persecution that openly homosexual individuals faced from individual officials or vigilante groups, particularly in cases where there was no official prosecution, which further undermined the assessment of the applicant’s safety on return;

(3) there was no evaluation of the potential risk posed by non‑state actors, including the applicant’s conservative family, who were aware of his homosexuality, as well as by wider society if he lived openly as a homosexual man. No consideration was given to the lack of state protection given the criminalisation of homosexual acts and the legality of honour killings by family members

In response, Switzerland raised issues about his credibility in relation to the compromising photographs and the issues with his family.

UNHCR gave evidence that:

the fact that an applicant may be able to avoid persecution by concealment or exercising “restraint”, or has done so in the past, is not a valid reason for denying refugee status. Concealing one’s sexual orientation does not merely require individuals to be “discreet”, but to “live a lie” about a fundamental aspect of their identity, while facing serious sanctions if their identity is discovered. Even if LGBTQI people have been able to avoid harm through secrecy, their circumstances may change over time and secrecy may not be an option for the rest of their lives. The risk of exposure may also not necessarily depend solely on their own behaviour. Even if LGBTQI persons are discreet, they may still be at risk of exposure and related harm because they do not conform to heterosexual social norms (for example, by not marrying or having children). Denying refugee status and forcing individuals to be “discreet” or to conceal their sexual orientation and/or gender identity can have serious consequences for mental and physical health, and may lead to an intolerable situation amounting to persecution. It is also incompatible with the protective purpose of the Convention (§38).

In relation to the point on discretion, the court considered that even if M.I.’s sexual orientation was not currently known outside the gay community in Iran, this could be discovered by the wider community and the Iranian authorities if he was returned to Iran and they disagreed with the Swiss decisions on this point (§50).

The European Court of Human Rights said that because the Swiss authorities had taken the view:

that it was unlikely that his sexual orientation would come to the knowledge of the Iranian authorities or population and that he therefore faced no real risk of ill-treatment, they did not carry out an assessment of the availability of State protection against harm at the hands of non-State actors, having declared that such a question did not arise in his case (see paragraph 36 above). The Swiss authorities therefore failed to carry out the necessary assessment and ignored the issue that underpinned the applicant’s claims (§55).

In considering the availability of state protection, evidence considered by the court included the UN Human Rights Special Rapporteur’s Report on the situation of human rights in the Islamic Republic of Iran (A/HRC/46/50), the Home Office’s Country Policy and Information Note: sexual orientation and gender identity or expression, Iran, June 2022, the Australian Department of Foreign Affairs and Trade Country Information report on Iran and other sources. All of which supported the position that effective protection against ill-treatment at the hands of non-State actors would not be available to M.I. from the Iranian authorities “and that it would be unreasonable to expect an LGBTI person to seek protection from the authorities given the continued criminalisation of same-sex sexual conduct in Iran” (§56).

The court unanimously held that because the Swiss courts had failed to properly assess the risk of ill treatment for M.I. as a gay man in Iran and whether state protection was available, returning him to Iran in the absence of that assessment would be a breach of article 3 of the European Convention on Human Rights (§57).

Wide-reaching effects of the judgment

Since 2010, the leading case on this issue in the UK is HJ (Iran) and HT (Cameroon) v the Secretary of State of the Home Department [2010] UK SC 31; [2011] 1AC596 [2010] UKSC 31 (‘HJ (Iran)‘).

In HJ (Iran), the Supreme Court delineated the approach to be followed by tribunals and decision makers when deciding whether a person is entitled to asylum on the basis of their sexual orientation. The Supreme Court confirmed that the underlying rationale of the Refugee Convention was that “people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay” (§ 53: see also §§ 52, 65, 67 and 78).

It also recognised that the need to carry on any same sex relationships “discreetly” to avoid persecution ran contrary to this underlying rationale. It involved surrendering the person’s right to live freely and openly in society as who they are, in terms of the protected characteristic, which was the Refugee Convention’s basic underlying rationale: Lord Rodger at §§ 75-76.

However, the Supreme Court noted that there was a difference between a case where the individual would live “discreetly” because of “social pressures” (§ 61) and a situation where he would behave “discreetly” in order to avoid persecution because of his sexual orientation (§ 62). The court held that only the latter would be entitled to refugee protection, assuming, of course, that he would suffer persecution if he were to live openly as a gay man: RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department (Appellant) and KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 38 at § 18.

The European Court of Human Rights has now ruled that the Iranian authorities would be unwilling to provide the applicant with effective protection against ill-treatment at the hands of non-State actors and that it would be unreasonable to expect an LGBTQI+ person to seek protection from the authorities given the continued criminalisation of same-sex sexual conduct in Iran (§56). Importantly, that returning M.I. to Iran, in light of the domestic courts’ failure to sufficiently assess the risk of ill-treatment for the applicant as a gay person in Iran or whether State protection against ill-treatment from non-State actors was available in Iran, his return to Iran without a fresh assessment of those aspects of his case would breach Article 3 of the Convention. (§57).

M.I. is an important judgment likely to support individual claimants and to guide decision-makers and practitioners when dealing with claims based on the risk of persecution on return to an asylum seekers’ country of origin if their LGBTQI+ identity is discovered.