(Application No 71398/12) (Judgment 26th June 2014) 
The European Court of Human Rights, in a judgment handed down yesterday, has declared admissible on Article 3 grounds, an application from a gay man regarding his expulsion from Sweden to Libya.  They declared inadmissible an article 8 ECHR claim.  However, as the Court could not be certain that the evidence showed Article 3 ill-treatment of gay men in Libya, and importantly, the Court found that any expulsion would be temporary, for a period of approximately four months in order for him to make his family reunion application, based on his same-sex marriage to a Swedish national, then any suppression of his sexual identity will not be permanent, the Court by a six to one majority decision held that there was no violation of Article 3.  The Court declared the article 8 ECHR claim inadmissible.  Maltese Judge De Gaetano in his separate opinion castigates t=his fellow majority judges for proceeding on the basis that it is accepted that ME is gay and in a genuine relationship with a Swedish man.  This Judge also sees no reason for the Strasbourg Court to refer to the recent Luxembourg judgment in X, Y and Z relating to criminalisation and persecution.
The dissenting opinion of Judge Power-Forde powerfully critiques the majority’s approach as enabling the resurrection of the ‘reasonably tolerable’ discretion test, for a short period, rejected by the UK Supreme Court’s judgment in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31; [2011] 1 A.C. 596.  The Opinion makes clear that the majority base their analysis on sexual identity being based on sexual conduct and negate the real risk that when ME is interviewed his cover could easily be blown.  What is clear in this opinion is that concealment is corrosive to ‘personal integrity and human dignity’.  This is an extremely powerful dissenting opinion which is firmly entrenched and supported by current International human rights jurisprudence.
A detailed Note is forthcoming, which in summary will show that this case can be distinguished on the specific individual facts.
S. Chelvan of No5 Chambers was instructed by firstly Diana Baxter, and then Wesley Gryk, at Wesley Gryk Solicitors LLP in London on behalf of ILGA-Europe (Brussels), FIDH (Fédération Internationale des Ligues des Droits de l’Homme) (Paris) and the International Commission of Jurists (Geneva).  A copy of the intervention can be found here 
Chelvan is also instructed by Wesley Gryk Solicitors in A.E. V Finland on behalf of  ECRE (Brussels), FIDH (Paris), Finnish Human Rights Lawyers (Helsinki) and ILGA-Europe (Brussels).  The case involves a gay man from Iran.  It is hoped that the Court in AE will hold a hearing in these proceedings.

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