M.E. v Sweden - Guest Post by Silvia Falcetta

I am delighted to post a critical commentary by Silvia Falcetta on the Grand Chamber judgment in M.E. v Sweden. 

Silvia is undertaking doctoral work at the State University of Milan. Her PhD research is a sociological study of ECHR jurisprudence in respect of LGBT rights, which incorporates analysis of the decisions and judgments of the Court and the former Commission, as well as the role of NGOs and third party interventions in the litigation process. 

Many thanks to Silvia for this piece. 

M.E. v Sweden: the Grand Chamber judgment

by Silvia Falcetta

On the 8th April 2015 the Grand Chamber finally struck out the case of M.E. v Sweden (app. no 71398/12), missing a relevant opportunity to enlarge the protection provided to lgbt people under the ECHR.

The most striking aspect of this concise judgment concerns the absence of a clear statement on the treatment of individuals who seek asylum in the Council of Europe on the ground of their sexual orientation; this is not the first case about homosexual migrants the ECtHR had to deal with^[1] and also the Ecj recently delivered a judgment concerning lgbt foreigners asking asylum because of threats experienced in their origin countries. The issue at stake in M.E. as well as in other mentioned cases surely impacts on the fragile balance between national immigration laws and fundamental rights but due to recent rising of migration rates similar cases are likely to increase, thereby forcing the ECtHR to face the question again.

To understand why through a more detailed reasoning the Grand Chamber could have clarified the ECtHR’s approach to applications concerning lgbt migrants I will highlight some problematic aspects that arose from the Fifth Section judgment and that after the recent striking out remain opened.

The legal framework and the Fifth Section judgment

in 2012 at the end of a quite complex national legal procedure, analyzed here, the applicant, a Libyan citizen married to a same-sex Swedish permanent resident, was denied a residence permit and Swedish authorities requested that Mr. M.E. applied for family reunion from his origin Country.

Consequently, Mr M.E. recurred to the ECtHR alleging a violation of Articles 3 and 8 of the ECHR.

In June 2014 the Fifth Section dismissed the claims of the applicant and displayed a problematic, flawed and controversial conclusion.

-  Problematic for the majority underestimated actual risks related to sexual orientation arising from a forced repatriation in Libya and, furthermore, the Court did not attach relevance to the fact that, irregardless of the actual enforcement of criminal laws against homosexuals a hostile attitude towards anyone suspected of being homosexual permeated local culture. Even though the applicant had married N. and the latter could not travel to Libya, precisely because of risks connected both to his sexual orientation and gender identity, the majority considered Swedish authorities entitled to require that Mr. M.E. returned to Libya and they considered the separation of the spouses as temporary, excluding that the process of family reunion would be “unduly length” (§ 100).

-  Flawed since the ECtHR, despite the absence of a clear understanding of treatments to which homosexual were exposed in Libya and even though at least two cases of massive violence against gay men were reported (§ 45), stated that “while having regard to the fact that homosexuality is a taboo subject and seen as an immoral activity against Islam in Libya, the Court does not have sufficient foundation to conclude that the Libyan authorities actively persecute homosexuals” (§87). Moreover, the Court dismissed the fact that all Swedish embassies in Libya had closed down as a irrelevant issue, stating “The Court reiterates that […] he would thus only have to travel to a Swedish embassy in a neighbouring country for the actual interview which could be done in a few days. In such a short time-frame, the Court finds no reason to believe that the applicant’s sexual orientation would be exposed so as to put him at risk of treatment contrary to Article 3 of the Convention in Algeria, Tunisia or Egypt” (§89).

-   Controversial given that the majority reinforced the ‘closet’ stereotype, affirming that even though Mr. M.E. should cover his sexuality while waiting for the approval of his family reunion, during an estimated period of four months, “this must be considered a reasonably short period of time and, even if the applicant would have to be discreet about his private life during this time, it would not require him to conceal or supress an important part of his identity permanently or for any longer period of time”(§ 88). Surely the tangled history of the applicant and the legitimate doubts concerning his submissions to the Migration Board casted many shadows on his past but, nevertheless, all these happenings do not diminish the fact that once in Sweden he found himself homosexual and married a man, nor his previous actions overcome the legal relevance of the civil marriage contracted in Sweden. The only dissenting voice, Judge Powder-Force, strongly argued against the majority reasoning, highlighting the many hidden biased standpoints: “The majority in this case has concluded that even if the applicant has ‘to be ‘discreet’ about his private life’ for some time following his expulsion to Libya, this would not involve a permanent or protracted suppression or concealment of an important part of his identity and thus would not reach the threshold necessary to violate Article 3 of the Convention. I disagree with the majority’s approach and conclusion. The fact that the applicant could avoid the risk of persecution in Libya by exercising greater restraint and reserve than a heterosexual in expressing his sexual orientation is not a factor that ought to be taken into account’ (dissenting opinion of Judge Powder-Force).

The Court dismissed all claims but in accordance with Rule 39 of Rules of the Court indicated to Swedish Government that it was “desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final or until further order.” (§ 104).  

The question of the treatment of individuals who seek asylum on ground of sexual orientation therefore was placed to the complete discretion of national authorities.

After the referral to the Grand Chamber, however, many jurists, activists and citizens hoped that the panel of seventeen judges would have approached the question with a far more in-depth reasoning.

The Grand Chamber judgment

On the contrary, the reasoning of the Grand Chamber appears quite flat.

In November 2014, after the Chamber judgment, the Migration Board’s Director General for Legal Affairs issued a Legal Comment concerning the situation in Libya, in which Swedish authorities acknowledged the extreme violent, unstable and dangerous situation later Gaddafi’s defeat (§ 24).

Moreover, “in the light of the information in the Legal Comment concerning the situation in Libya, and noting that the Court had referred the applicant’s case to the Grand Chamber, the Migration Board decided to examine the applicant’s case again” (§26) and finally granted him a permanent residence permit, without however reconsidering decisions pronounced by a higher-ranking authority or [examining] the correctness of the assessments made by such authorities  (§ 27).

Mr. M.E. decided to maintain the application since he alleged that “the matter before the Court had not been resolved” (§29); namely the applicant requested that the Grand Chamber reviewed whether “the previous decisions by the Swedish authorities had been in breach of Article 3 since, at the time when they had taken their decisions, they knew or ought to have known that his removal to Libya would expose him to a real risk of inhuman or degrading treatment” (§ 30).

Furthermore Mr. M.E. held that its case “raised serious issues of fundamental importance relating to homosexuals’ rights and how to asses those rights in asylum cases all over Europe” and required the ECtHR to continue the examination (§30).

Thus applicant both called for a general interpretation of the ECHR that led to a sort of pilot judgment and demanded personal satisfaction since “he considered that he was still a victim since the Swedish authorities had at no point acknowledged a violation of his rights under the Convention” (§30).

The Grand Chamber neither disputed the correctness of the risk evaluation made by national authorities and endorsed in the previous ECtHR judgment nor it mentioned the necessity to establish a general frame related to lgbt individuals seeking asylum on the ground of their sexual orientation.

Indeed, the Grand Chamber noted that the Swedish National Board in its last Report had taken the applicant’s sexual orientation into account (§37) and concluded: “the Court does not need to enquire retrospectively into whether a real risk engaging the respondent State’s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment” (§36).

Finally, the Grand Chamber didn’t even consider whether asking to lgbt migrants to conceal their sexuality in order not to incur in criminal sanctions in their origin country could be legitimate under Articles 3 and 8 of the ECHR.

In conclusion, the Grand Chamber judgment did not loosen the knot of how to balance national immigration laws and fundamental rights, endorsing an extreme cautious approach, light years away from the milestone reasoning offered by the Ecj that argued: “when assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexuality.” (joined cases C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v. X, Y and Z, § 79) .

It is striking that, at the moment, while the Ecj strongly calls to secure lgbt migrants the ECtHR, specifically aimed at ensuring, developing and enforcing fundamental rights, prefers a mere procedural review, unsatisfactory from any point of view.

The Grand Chamber, indeed, chose an approach deferent to national authorities, possibly for a twofold reason: national security and immigration laws traditionally lie at the core of domestic sovereignty and an activist judgment could have risen criticism from States member of the Coe; moreover, as Judge De Gaetano implied in the Chamber judgment, a quite consistent portion of public opinion suspects that if the ECtHR required member States to grant asylum to lgbt migrants from Countries in which homosexuality is formally or informally prosecuted, then a great portion of heterosexual people would enter marriages of convenience and declare him/herself as homosexual even if not true.

Furthermore recent political election show how European public opinion is scared of increasing immigration rates, a topic often used by politicians as a scapegoat to justify internal social and economic troubles and call for stricter borders. In such a context the application of a structural margin of appreciation has surely protected the Court from criticism of policy-making, at the great, I would say unbearable,expense of a brave and effective interpretation of the ECHR that secured migrants threatened because of their sexual orientation.

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^[1] See for instance M.K.N. v Sweden, no. 72413/10, judgment 27/6/2013; Sobhani v Sweden, no. 32999/96; F. v UK, no 17341/03, judgment 22/06/14; I.N.N. v the Netherlands, no. 2035/04, decision 09/12/04. Also the EComHR dealt with several application challenging the heteronormativity of domestic immigration laws, see X and Y v UK, no 9369/81, decision 03/05/1983; W.J. and D.P. v UK, no.12513/86, decision 13707/1987; C and L.M. v UK, no. 14753/89, decision 09/10/1989; Z.B. v UK, no. 16106/90, decision 10/02/1990