SEPARATE OPINION OF JUDGE DE GAETANO

1. Although I voted with the majority in this case, I do not share entirely the reasons advanced in the judgment. Indeed, I would have been more inclined to dismiss the application as manifestly ill-founded in terms of Article 35(3)(a), as the Government had proposed in their memorial of 7 February 2013 (see paragraph 16 of that memorial).

2. In the instant case there is not only a huge deficit in terms of the applicant ’ s credibility, but also a manifest absence of evidence to suggest that the applicant, if returned to Libya, would face a specific, personal and significant risk of ill-treatment amounting to inhuman or degrading treatment whether because of his alleged “gun-running” or because of his alleged sexual orientation. Unfortunately the whole case was side-tracked, both before the domestic tribunals and before the Court, over issues connected with the requirement that the request for family reunification must, as a rule, be made before entering Sweden (see paragraph 33 and 34 of the judgment).

3. The Court ’ s judgment is in large measure predicated on the fact that “neither the migration courts nor the Government have questioned that the applicant is homosexual and that his marriage to N. is serious” (paragraph 83). That statement is, to my mind, not entirely correct. The Migration Board did have doubts as to the applicant ’ s story “both in relation to events in Libya and his relationship with N.” (see paragraph 18 in fine ). The fact of whether the applicant ’ s ‘ marriage ’ to N. was genuine or merely one of convenience did not, in reality, have to be decided by the domestic tribunals at that stage of the proceedings – that fact would have become pertinent at the stage of the application for family re-unification. Secondly, not questioning a fact does not necessarily mean that one accepts that fact as being correct. In their memorial, abovementioned, the Government (in paragraph 2) stated that “The Statement of Facts...prepared by the Registry of the Court appears to be essentially correct.” That Statement of Facts reproduces essentially the decisions of the domestic tribunals, and the fact that the Government agree as to what those tribunals actually said does not mean that the Government agree that what was said was correct. In any event, it appears from that Statement of Facts that it was only the Migration Court (as opposed to the Migration Board) which “did not question the applicant ’ s claim that he was homosexual”. There is nothing in that Statement of Facts as to the seriousness or otherwise of the ‘ marriage ’ . The domestic tribunals had not reached that bridge and were therefore not required to cross it. Finally, in the said memorial the Government do cast doubt on the general credibility of the applicant and the veracity of his story: “In view of the above, and with regard to the fact that many of the inconsistencies referred to touch upon essential aspects of the applicant ’ s asylum account, the Government contends, like the domestic migration authorities, that there are strong reasons to question his credibility.” (paragraph 37 of the memorial).

4. The reference to the judgement of the ECJ in the names Minister voor Immigratie en Asiel v. X, Y and Z in paragraph 50 is totally unnecessary for the determination of the present case. The controversial statement (admittedly made in the specific context of Council Directive 2004/83/EC) to the effect that “the criminalisation of homosexual acts per se does not constitute an act of persecution” could be seen as somehow undermining the standards set by the Court as far back as the 1980 ’ s in connection with the criminalisation of homosexual acts and the resulting violation of Article 8 (see Dudgeon v. the United Kingdom no. 7525/76, 22 October 1981, §§ 40 to 46; Norris v. Ireland no. 10581/83, 26 October 1988, §§ 38 and 46 to 47) and the consequent irrelevance, for the purpose of a violation of fundamental human rights, of whether or not such laws are in fact applied or applied sporadically.

DISSENTING OPINION OF JUDGE POWER-FORDE

In this case, the starting point for the Court ’ s analysis must be that the applicant is a gay man whose relationship with N. is recognised as a lawful marriage under Swedish law. [1] Homosexuality is illegal in Libya—the applicant ’ s country of origin—and is punishable by imprisonment. Whilst, apparently, there have been no ‘ active prosecutions ’ since the fall of the former regime, recent evidence indicates that arrests and serious assaults are inflicted upon homosexuals ‘ simply for being homosexual ’ (§ 45 of the judgment).

The Court is required to consider whether the respondent State may expel, even temporarily, a person whose sexual orientation would expose the individual concerned to a real risk of treatment that violates Article 3 in his or her country of origin if that person were to be open about his or her sexual orientation.

Ten years ago the Court adopted two decisions relating to gay men from Iran and declared their applications inadmissible. In F. v. the United Kingdom [2] the Court examined the country background information as it was in 2003 and considered that the evidence did not disclose ‘ a situation of active prosecution by the authorities of adults involved in consensual and private homosexual relationships. ’ In view of the scarce material on actual prosecutions based solely on sexual conduct the Court concluded that a tenuous and hypothetical basis of Article 3 treatment occurring was insufficient to find that the applicant ’ s expulsion would violate that provision of the Convention. Implicit in the Court ’ s reasoning is the assumption that the applicant would be ‘ discreet ’ about his sexual orientation in Iran beyond the privacy of his home. A similar conclusion based upon the same type of reasoning was reached in I.I.N. v. the Netherlands. [3]

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 (§ 88). 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.

Significant developments have taken place over the last decade in the national laws of contracting parties, in International law and in European asylum law in relation to claims to refugee status based on sexual orientation and/or gender identity. Whilst this case is not about refugee status, it does involve the expulsion—for an unknown period of time—of a gay man to Libya where he faces a real risk of persecution because of his sexual orientation. The relevant principles, therefore, can be applied mutatis mutandi and, to my mind, it is time for this Court to endorse them.

The United Kingdom Supreme Court, for example, in its decision in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [4] marked a clear departure from the ‘ risk of criminal prosecution ’ approach as outlined in this Court ’ s jurisprudence of ten years ago. In its landmark judgment of 7 July, 2010, that Court held, unanimously, that the ‘ reasonably tolerable test ’ of ‘ being discreet ’ was objectionable because no heterosexual person would find such constraints on being open about their sexual orientation to be reasonably tolerable. [5]

In 2012, the United Nations High Commissioner for Refugees published Guidelines on International Protection in this area. [6] Those Guidelines affirm that sexual orientation and/or gender identity are fundamental aspects of human identity that no person should be required to suppress. [7] The UNHCR notes numerous decisions in multiple jurisdictions which confirm that respect for fundamental human rights cannot be consistent with the requirement that a person conceal an aspect of his or her identity.

The Court of Justice of the European Union in Minister voor Immigratie en Asiel v. X, Y and Z endorses this general principle. [8] In November of last year, that Court considered it:

‘ important to state that requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person ’ s identity that the persons concerned cannot be required to renounce it ’ . [9]

In an earlier case it had ruled that the fact that a person could avoid a risk of persecution in Pakistan by abstaining from certain religious practices was, in principle, irrelevant. [10] Adopting the same approach to a different aspect of personal identity (sexual orientation), the Court in Minister voor Immigratie en Asiel v. X, Y and Z ruled that an applicant for asylum ‘ cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution ’ . [11]

The majority ’ s conclusion in this case does not ‘ fit ’ the current state of International and European law on this important question of fundamental human rights. Recent developments, based as they are upon the recognition of the equal value and dignity of all persons regardless of their gender identity or sexual orientation, are to be welcomed. [12] Having recited those developments in its judgment, the majority then reverts to the old ‘ reasonably tolerable ’ test laid down by this Court over a decade ago. It considers that the ‘ discretion ’ requirement for a certain period of time in order to avoid persecution is tolerable. Its rationale is that such a requirement for a homosexual person does not involve a permanent or protracted concealment or suppression of an important part of personal identity (§ 88).

The reasoning is flawed and unconvincing. With this judgment, the Strasbourg Court introduces a new test of ‘ duration ’ that is not to be found elsewhere in comparative European law. The asylum case law of the Court of Justice of the European Union (the ‘ CJEU ’ ) imposes no such ‘ time ’ requirement. An applicant cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution—period. [13] The requirement to conceal sexual orientation is, in itself, incompatible with the recognition of a characteristic so fundamental to a person ’ s identity that the persons concerned cannot be required to renounce it. [14] What counts, for the CJEU, is the fact of having to exercise greater restraint and reserve than would be required of a heterosexual in the expression of sexual orientation—and not the length of time for which the discriminatory restraint and reserve would have to be endured. [15]

An important factor in the UK Supreme Court ’ s decision to reject ‘ being discreet ’ as a requirement was that it was based upon the wrong assumption. Had it been applied to Anne Frank, it would have meant, hypothetically, that she could have been returned to Nazi-occupied Holland as long as denying her religion and hiding in an attic were a ‘ reasonably tolerable ’ means of avoiding detection. The absurdity of that argument is not diminished by the fact that the requirement to hide in an attic to avoid detection might involve only months rather than years.

There are other flaws in the majority ’ s approach. There is an assumption, at least, an implicit one, that sexual identity is, primarily, a matter of sexual conduct which – if not publicly displayed or discussed by the applicant – would eliminate any risk of harm being visited upon him. Sexual orientation is, of course, something far more fundamental than sexual conduct and involves ‘ a most intimate aspect of private life ’ ( Norris v. Ireland , 26 October 1988, § 46, Series A no. 142) . It is inherent to one ’ s very identity and it may be expressed in a myriad of ways. The practical consequences for this applicant of the requirement that he be ‘ discreet ’ when returned to Libya are nowhere considered in the judgment. At the most basic level, if a gay man were to live discreetly, he would, in practice, have to avoid any open expression of his sexual orientation. [16] He would have ‘ to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised ’ . Not only would he be unable to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted and committed to another man in a foreign jurisdiction.

In finding that the ‘ discretion ’ requirement is insufficient ‘ to reach the threshold of Article 3 ’ , where, one wonders, does the majority find the yardstick to measure the level of suffering which this applicant would find reasonably tolerable? How would the majority measure the equivalent level for a straight man forced to suppress his sexual identity for many months or longer? [17] The answer surely is, as Lord Rodger stated, ‘ that there is no relevant standard since this is something which no one should have to endure ’ . [18]

Finally, the majority ’ s approach ignores the fact that even if the applicant succeeds in hiding his sexual orientation after expulsion to Libya, the risk of discovery of the truth is not, necessarily, a matter determined entirely by his own conduct. Apart from the distress of having to lie about and conceal important aspects of his personal life on a regular basis, the applicant would be obliged to travel to a Swedish Embassy in Egypt or Algeria for an interview. Homosexual acts are criminalised, directly or indirectly, in those countries. It is inconceivable that the interview process for family reunification could be conducted without disclosure of his sexual orientation. This clearly carries the risk that his sexual orientation—perceived as ‘ criminal ’ —would be disclosed to the authorities at that point and his carefully woven cover ‘ blown ’ .

This Court has held that to deprive a person of his reading glasses for a few months reaches the required threshold under Article 3. [19] Depriving this applicant of his dignity for a similar or longer period by expecting him to hide an intrinsic part of his identity for fear of persecution does not. Something doesn ’ t fit. It is more than a minor inconvenience for the applicant to do as the majority requires. Having to hide a core aspect of personal identity cannot be reduced to a tolerable bother; it is an affront to human dignity—an assault upon personal authenticity. Sexual orientation is fundamental to an individual ’ s identity and conscience and no one should be forced to renounce it—even for a while. Such a requirement of forced reserve and restraint in order to conceal who one is, is corrosive of personal integrity and human dignity.

[1] I accept that the applicant’s general truthfulness has been undermined by a number of inconsistencies referred to in the judgment.  However, neither the Migration Courts nor the Government have questioned the applicant’s sexual orientation or the authenticity of his relationship with N. which is recognised as a same-sex marriage under domestic law.

[2] F. v. the United Kingdom ( dec. ), no. 17341/03, 22 June 2004.

[3] I.I.N. v. the Netherlands ( dec. ), no. 2035/04, 9 December 2004.

[4] United Kingdom Supreme Court judgment, 7 July 2010, HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596 .

[5] Ibid., § 77 and § 80

[6] UNHCR, 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, 2012.

[7] See § 12 of the Guidelines.

[8] See Court of Justice of the European Union, (Joined cases C-0199/12, C-200/12 and C0201/12), Minister voor Immigratie en Asiel v. X, Y and Z , 7 November, 2013 .

[9] § 70

[10] Bundesrepublik Deutschland v. Y (C-71/11) and Z (C-99/11), 5 September 2012 § 79 .

[11] Minister voor Immigratie en Asiel v. X, Y and Z, § 71.

[12] Although the Legal Position of the Head of the Legal Department of the Migration Board relating to protection on the basis of sexual orientation (see § 36 of the Judgment) is said to reflect the test set out by the UK Supreme Court — it is clear that, in this applicant’s case, the requisite test was not applied by the domestic authorities thus, at the very least, indicating a procedural violation under Article 3 of the Convention.

[13] Court of Justice of the European Union, (Joined cases C-0199/12, C-200/12 and C0201/12), Minister voor Immigratie en Asiel v. X, Y and Z, 7 November, 2013 at § 71.

[14] Ibid. § 70

[15] Ibid . § 75

[16] These examples are cited by Lord Rodger in his opinion in the HJ (Iran) judgment § 77.

[17] Whilst the majority considers that the application process could take four months if he is granted priority (there being no certainty in this regard), the reality is that the length of time in which this applicant would be required to live discreetly in Libya whilst waiting for his application to be processed is simply unknown.  Additionally, there is, of course, no guarantee that his application would be successful.

[18] Opinion of Lord Rodger, HJ (Iran) v . Secretary of State (cited at n. 4 above) § 80.

[19] Slyusarev v. Russia , no. 60333/00, 20 April 2010 .