Tue, 18 Mar 2014
S. Chelvan of No5 Chambers, instructed by Wesley Gryk of Wesley Gryk Solicitors LLP, has drafted on behalf of four international Non-Governmental Organisations, based in Brussels, Helsinki and Paris respectively, written comments for the forthcoming Strasbourg case of A. E v Finland (App. No 3095/11). The case will provide the European Court of Human Rights an opportunity to revisit earlier decisions last made in 2004 to decide whether expelling a gay man from Iran, would violate his rights not to suffer treatment contrary to article 3 of the ECHR.
In summary, the following points are covered within the written comments:
(i) A person cannot be expelled to a place where (s)he will be subjected to treatment contrary to article 3 because (s)he is, or would be perceived as, gay or lesbian;
(ii) It is irrelevant that the applicant could avoid this treatment by 'being discreet' about his sexual orientation, just as it would be irrelevant if a political dissident or a member of a religious minority could avoid similar treatment by keeping their political opinion or religion a secret;
(iii) Further, the fact that a country criminalises adult private same-sex sexual conduct creates the presumptions (i) that actual or perceived lesbians and gay men are at real risk of treatment contrary to Article 3 in that country; and (ii) in any event, actual and perceived lesbians and gay men will be offered no state protection against serious harm which they would face on the basis of that sexual identity;
(iv) Further, even if an applicant is voluntarily discreet for only family or societal reasons, then the fact that he or she is required to present publicly (or create or manufacture) elements of a heterosexual narrative to evade harm (such as ‘proving’ heterosexuality by being sexually receptive to members of the opposite sex, and/or by getting married and/or having children), and therefore conform to a stereotype to evade harm through identification of difference, is in itself contrary to Article 3.
Out of the 47 Council of Europe Members, 34 currently have some recognition of asylum claims based on sexual identity. If the written comments are adopted by the Court, then all 47 member states will have to approach claims on the basis of the 2010 UK Supreme Court landmark judgment in HJ (Iran) and HT (Cameroon) v SSHD  UKSC 31;  1 AC 596.
The written comments were contributed to by seven intervenors. They are the AIRE (Advice for Individual Rights in Europe) Centre, ECRE (European Council on Refugees and Exiles), FIDH (Fédération Internationale des Ligues des Droits de l’Homme), FLHR (the Finnish League for Human Rights), ILGA-Europe (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), INTERIGHTS and UKLGIG (UK Lesbian and Gay Immigration Group).
S. Chelvan is instructed by Wesley Gryk on behalf of ECRE, FIDH, FLHR and ILGA Europe. AIRE Centre, INTERIGHTS and UKLGIG joined and contributed to the written comments. S. Chelvan is additionally instructed by Wesley Gryk Solicitors on behalf of FIDH, ICJ (International Commission of Jurists (Geneva)) and ILGA-Europe in their intervention in M.E. v Sweden (App. No. 71398/12), which addresses the risk to a gay man from Libya, who is married to a man from Sweden.
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