Gay, rejected asylum seeker required to return to Libya and apply for family reunion in Sweden

M.E. v. Sweden, 26 June 2014 

Note: strong dissenting opinion by Judge Power-Forde – http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-145018

“The Court’s assessment

(a)General principles

71.The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, inter alia,Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102 Series A no. 215, p.34). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 of the Convention implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no.37201/06, § 125, ECHR 2008).

72.The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos.46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (see Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II).

73.The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, inter alia, N.v.Sweden, no. 23505/09, §53, 20 July 2010 and Collins and Akaziebie v.Sweden (dec.), no.23944/05, 8March2007). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see NA. v. the United Kingdom, no.25904/07, § 111, 17 July 2008).

74.As regards the general situation in a particular country, the Court has held on several occasions that it can attach a certain importance to information contained in recent reports from independent international human rights protection associations or governmental sources. At the same time, the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3. Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence (see, for example, Saadi, cited above, §131, with further references).

75.Thus, in order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of the removal of the applicant to Libya, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others, cited above, §108).

(b)The applicant’s case

76.From the outset, the Court stresses that what is at issue in the present case is not a final decision by the Swedish authorities to grant or to refuse the applicant a residence permit based on family ties. No decision thereon has yet been taken.

77.The matter to be considered by the Court is whether it would be in breach of Article 3 of the Convention if the Swedish authorities were to implement the order to return the applicant to Libya to apply for family reunion from there.

78.The Court first acknowledges that it is often difficult to establish, precisely, the pertinent facts in cases such as the present one and it accepts that, as a general principle, the national authorities are best placed to assess the credibility of the applicant if they have had an opportunity to see, hear and assess the demeanour of the individual concerned (see, R.C. v. Sweden, no.41827/07, § 52, 9 March 2010). In this respect, the Court observes that the applicant’s case was examined on the merits by the Migration Board, which held two in-depth interviews with the applicant, and by the Migration Court, which held an oral hearing. Moreover, the Migration Court of Appeal considered his appeal but found no grounds on which to grant leave to appeal. Furthermore, the applicant then requested the Migration Board to reconsider his case on the basis of new information but this request was rejected by the Board. The Court notes that the applicant was represented throughout the proceedings by legal counsel who filed a number of submissions on his behalf.

79.The Court will first consider the applicant’s claim that he risks being arrested and ill-treated because he was involved in illegal weapons transport in Libya before leaving the country.

80.In this respect, the Court observes that the Government have questioned the applicant’s credibility, as did the national authorities in Sweden, which found that he had given them contradictory and deliberately false information. Thus, he had given several accounts of how and when he had travelled to Sweden and the whereabouts of his passport. Moreover, the Court notes that in November 2011 the applicant stated that following the fall of Gadhafi, the threat against him in Libya had decreased. However, during the oral hearing before the Migration Court, he claimed that there was a threat against him in Libya because he had worked in the military during the Gadhafi regime. In his submissions to the Court, the applicant has reverted to his original claim that there is still a threat against him due to the weapons transport but he has not elaborated further. Here, the Court also notes that, during the domestic proceedings, the applicant had said that he had transported weapons for the clans for more than a year, whereas before the Court, he has claimed that he had not known about the weapons in the car when he was stopped.

81.In view of the above and of the thorough examination of the applicant’s claims in this regard by the domestic authorities, the Court cannot but join them and the Government in finding that the applicant lacks credibility and, consequently, that he has failed to substantiate that he would face a real and personal risk of arrest or ill-treatment upon return to Libya on the basis of his alleged involvement in illegal weapons transport before leaving the country. In reaching this conclusion, the Court has also had regard to the change in power in Libya since the applicant left the country.

82.Next, the Court will consider the applicant’s claim that he would face a real and personal risk of being persecuted and ill-treated if returned to Libya, even for a short period of time, due to his sexual orientation and the fact that he is married to N.

83.The Court first notes that neither the migration courts nor the Government have questioned that the applicant is homosexual and that his marriage to N. is serious. It will thus proceed on this basis.

84.With reference to paragraph 80 above, the Court reiterates that the national authorities found that the applicant lacked credibility since he altered and escalated his story during the proceedings. The Government have also highlighted the changes that the applicant has made to his account during the domestic proceedings as well as before the Court. In the Court’s view, the applicant has not given a satisfactory explanation of why he has changed and added to his story over time. In particular, it seems strange that in his first submission to the Court, in December 2012, the applicant claimed that he had already lived as a homosexual in Libya before going to Sweden and had suffered beatings and two arrests by the morality police. He has never brought these claims before the Swedish authorities even though he requested the Migration Board to reconsider his case in October 2012, only a few months before raising them before the Court. On the contrary, during the in-depth interview with the Migration Board on 20 August 2010, the applicant had stated that he had lived well in Libya until his arrest and that he had planned to marry a woman in Libya in May 2010 (see above paragraph 13). Consequently, noting his changing submissions to the national authorities about his sexual orientation and who knew about it, the Court considers that the applicant has not given a coherent and credible account on which to base its examination of his claims.

85.The Court should also examine if the Migration Board and the Migration Court expressly applied the recommended test set out in the Legal Position by the Head of the Legal Department of the Migration Board since it had been issued in January 2011, before the Migration Board’s decision of 16 December 2011 and the Migration Court’s judgment of 13 September 2012. In relation to the Migration Board, the Court notes that it did not apply the test since it did not find it substantiated that the applicant was actually homosexual and involved with N. Thus, there was no need to carry out the test at all. In so far as concerns the Migration Court, the Court observes that it did not question the applicant’s sexual orientation but found that he had not substantiated that there was a threat against him in Libya. Consequently, it did not proceed to consider the remaining criteria.

86.In any event, the Court observes that the applicant has stated that he introduced N. to his family when they spoke over internet with a camera and that N. presented himself as a woman. The applicant’s family is thus aware of his relationship and marriage to N. but believes N. to be a woman since the applicant has chosen to present the relationship in this manner. In the Court’s opinion, this indicates that the applicant has made an active choice to live discreetly and not reveal his sexual orientation to his family in Libya – not because of fear of persecution but rather due to private considerations (compare criteria 6 of the test set out in the Legal Position, above paragraph 36).

87.Moreover, having regard to the country information on Libya, the Court notes that, since the overthrow of Gadhafi in 2011, the situation in Libya has been, and continues to be, insecure and unclear as to the direction the country is taking. Consequently, there is also only little and varying information about the situation for homosexuals in Libya, making it difficult for the Court to make an evaluation of this matter. Although it is clear that homosexual acts are punishable by imprisonment under Articles 407 and 408 of the Libyan Penal Code, the applicant has not presented, and the Court has not found, any information or public record of anyone actually having been prosecuted or convicted under these provisions for homosexual acts since the end of Gadhafi’s regime in 2011. Thus, 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.

88.Furthermore, the Court notes that the applicant has a passport and thus would not have to contact Libyan authorities for this purpose. Moreover, it stresses that the present case does not concern a permanent expulsion of the applicant to his home country but only a temporary return while the Migration Board considers his application for family reunion. According to the Swedish Government, the applicant can request priority treatment of his application for family reunion and he can also submit his application through the Migration Board’s online system which would speed up the process and reduce the waiting time to approximately four months. In the Court’s view, 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. Thus, it cannot by itself be sufficient to reach the threshold of Article 3 of the Convention.

89.While the Court notes that there is currently no Swedish representation in Libya, it reiterates that the applicant can complete his application for family reunion online. 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.

90.Having regard to all of the above, the Court concludes that substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if he had to return to Libya to apply for family reunion from there, have not been shown in the present case. Accordingly, the implementation of the expulsion order against the applicant would not give rise to a violation of Article 3 of the Convention.“

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