The Grand Chamber of the European Court of Human Rights yesterday struck the complaint in M.E. v Sweden from its list. In doing so, the Court missed a key opportunity to make a significant statement on the treatment of individuals in Council of Europe states who seek asylum on the grounds of sexual orientation. Specifically, it failed to determine whether returning a gay man to a state that criminalizes homosexual sexual acts amounts to a violation of the European Convention on Human Rights.
Background to the Grand Chamber judgment
M.E. v Sweden has a complex history. The case concerns a Libyan national currently living in Sweden who complained to the Court about his threatened expulsion from Sweden to Libya where, he alleged, he would be at risk of persecution and ill-treatment because he is a homosexual.
Mr. M.E. arrived in Sweden as an illegal migrant in 2010 and claimed asylum. In 2011, he married a man who has permanent residence in Sweden. Swedish authorities repeatedly rejected Mr. M.E.'s application for a residence permit. They concluded that he could be returned to Libya where he could apply for family reunion with his spouse.
The Libyan Penal Code makes all same-sex acts illegal, with a maximum punishment of imprisonment for five years.
Mr. M.E. argued that expelling him to Libya would violate his rights under Article 3 of the Convention because as a homosexual he would be at risk of persecution and ill-treatment. He further argued that returning him to Libya and separating him from his spouse would violate his right to respect for family life under Article 8 of the Convention.
In June 2014, a chamber of the Fifth Section of the Court unanimously declared the applicant's Article 8 complaint inadmissible and held, by six votes to one, that the expulsion of the applicant to Libya would not give rise to a violation of Article 3 of the Convention. In November 2014, the Court announced that the complaint would be referred to the Grand Chamber for consideration at the applicant's request.
In the light of new information concerning the situation in Libya, and noting that the Court had referred the applicant's case to the Grand Chamber, the Swedish Migration Board decided to examine the applicant's case again and to determine whether there were impediments to returning him to Libya. On 17th December 2014, the Migration Board granted the applicant a permanent residence permit in Sweden.
The issues before the Grand Chamber
In light of the applicant having been granted residence, the Swedish government asked the Court to either strike the case from its list (because the matter was resolved) or declare it inadmissible (because the applicant could no longer be considered a victim).
Article 37 § 1 of the Convention provides the Court with the option of striking a case from its list when 'the matter has been resolved'. It also provides the Court with the opportunity of continuing to examine a complaint, even if the matter has been resolved, 'if respect for human rights as defined in the Convention and the Protocols thereto so requires'.
The applicant asked the Grand Chamber to continue to examine the merits of his complaint because, despite him being granted residence in Sweden, he did not regard the matter to have been resolved. He made a number of arguments to support his request:
- first, the applicant reminded the Grand Chamber that his complaint concerned the question of whether the previous decisions by the Swedish authorities to return him to Libya, where he alleged he would have been at risk of inhuman or degrading treatment, had been in breach of Article 3;
- second, and relatedly, the applicant stated that the Grand Chamber should consider whether the domestic authorities' decisions were so flawed that they amounted to a procedural violation of Article 3;
- third, the applicant stated that his complaint before the Grand Chamber also included questions about the correctness of the Chamber's reasoning under Article 3;
- fourth, the applicant stated that respect for human rights required that the Grand Chamber continue the examination of the case, since it raised serious issues of fundamental importance relating to homosexuals' rights and how to assess those rights in asylum cases all over Europe;
- fifth, the applicant stated that he was still a victim since the Swedish authorities had at no point acknowledged a violation of his rights under the Convention.
The Grand Chamber's response to the applicant
The Grand Chamber rejected all of the arguments advanced by the applicant. Focusing entirely on the present situation of the applicant (as someone who had been granted residence in Sweden) the Grand Chamber stated that it did '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'. The Grand Chamber gave a simple reason for not examining the previous decisions of the Swedish authorities or the reasoning of its own Chamber: '[t]hese are historical facts but they do not shed light on the applicant's current situation'.
The Grand Chamber also rejected the applicant's claim that there were special circumstances regarding respect for human rights which required the continued examination of the complaint. In doing so, it noted that in its decision of 17th December 2014 the Migration Board had taken the applicant's sexual orientation into account and found that he was in need of protection in Sweden. The Grand Chamber stated that '[a]gainst this background, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case'.
A missed opportunity
The Grand Chamber's 'all's well that ends well' approach can be seen as a way of 'dodging' an examination of the merits of the applicant's complaint about the material time that he was denied residence in Sweden. There are two obvious reasons for the Grand Chamber adopting this approach. First, to continue to examine the applicant's complaint would have meant making a definitive judgment on whether the previous decisions of the Swedish authorities were compliant with the Convention. Second, and relatedly, this would have required the Grand Chamber to also pass judgment on the Court's previous rejection of the applicant's complaints and, in particular, the strongly worded Dissenting Opinion of Judge Power-Forde (Ireland).
The Grand Chamber's reluctance to provide such a judgment will be regarded by many as deeply disappointing. This is not least because it is entirely possible that, following the Court's Chamber judgment, the applicant might not have applied for referral to the Grand Chamber and, as a result of the Chamber judgment becoming final, might have been returned to Libya. For this reason alone, the Grand Chamber should have examined the merits of the complaint about the material time the applicant was denied residence.
The Grand Chamber cited a range of previous decisions to support its argument that 'according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases'. However, none of the cases cited concern complaints that had been subject to a Chamber judgment, a referral to the Grand Chamber, and a subsequent 'change of heart' by the domestic authorities. M.E. v Sweden is significantly different to the cases the Grand Chamber cites because it concerns a complaint about the reasoning of the Court and not simply the reasoning of the domestic authorities.
In this respect, the Grand Chamber's reluctance to reflect on the Court's previous Chamber judgment will also be regarded by many as deeply disappointing. This is not least because in not refuting it, the Grand Chamber can be seen to – albeit implicitly and passively – endorse the reasoning of the Chamber judgment. Some will regard this as the Grand Chamber being unwilling to change the Court's established 'tradition' of never upholding complaints by homosexual applicants who allege that expulsion to a state that criminalizes homosexual acts puts them at risk of treatment in violation of their Convention rights.
M.E. v Sweden posed a straightforward question for the Grand Chamber to consider: does returning an 'identifying and practicing' homosexual to a country that criminalizes homosexual acts amount to a violation of their Convention rights? The Grand Chamber's failure to engage with this question – by not addressing whether the previous decisions of the Swedish authorities (to refuse the applicant residence) amounted to a violation of the applicant's Article 3 rights – is a missed opportunity to make a significant judgment in this important area. Some may take comfort from the fact that the Grand Chamber regarded the removal of the alleged risk to the applicant, by granting him residence in Sweden, 'as decisive for the Court's finding that the matter has been resolved' and it striking the case from its list. Others will take no such comfort from a judgment that makes no significant difference to the Court's established approach of allowing Contracting States the widest possible margin of appreciation to determine whether it is appropriate to return gay men and lesbians to states that operate a blanket prohibition on homosexual acts - a prohibition which puts gay men and lesbians at significant risk of ill-treatment.