On 17 November 2020, the European Court of Human Rights (the Court) delivered B and C v. Switzerland, a case concerning the deportation of a homosexual Gambian national. While the Court noted that the mere existence of laws criminalising homosexual acts did not render deportation contrary to Article 3 ECHR, it concluded that the Swiss courts had failed to adequately assess the risk of ill-treatment on grounds of sexual orientation and availability of the State protection against ill-treatment emanating from non-State actors.

The applicants, Mr B and Mr C, are a Gambian and a Swiss national who registered same-sex partnership in Switzerland. The first applicant has been living in Switzerland since 2009. His asylum and, subsequently, his residence permit were refused, and he was ordered to leave for The Gambia, where homosexual conducts are criminalised. He claimed that, due to his sexual orientation, he would face a real risk of ill-treatment contrary to Article 3.

The second applicant lodged a request for family reunification in respect of the first applicant. The application was rejected since the first applicant had a family network on which he could rely and his sexual orientation was believed not to be discovered by the Gambian authorities or population. As the second applicant passed away during the proceedings, the Court considered it not necessary to examine the right to private and family life under Article 8.

In its ruling, the Court recognised the importance of a person’s sexual orientation to his or her identity by confirming that no one has to conceal their sexual orientation to avoid persecution. In this regard, the Court denied the argument of the Swiss authorities that the Gambian authorities would not learn the first applicant’s sexual orientation as he did not belong to any relevant groups. The Court considered his sexual orientation to be subsequently discovered if he were deported back to The Gambia, given that the death of the second applicant may induce him to find a new partner.

The Court further examined the risk of ill-treatment at the hands of the authorities and non-State actors, respectively. Regarding State actors, the Court found that, while homosexual acts remain criminalised in The Gambia and carry severe prison sentences, the legislation is not applied in practice. However, the Court noted that persecution by State actors may take the form of individual acts of “rogue” officers and that these acts may be under-reported in recent country reports.

As for non-State actors, the Court agreed with the Swiss authorities that the alleged ill-treatment from the first applicant’s family was not credible given his contradictory statements. Nevertheless, the Court emphasised that ill-treatment may also emanate from non-State actors other than family members. It took note of widespread homophobia and discrimination against LGBTI persons in The Gambia, further establishing that the Swiss authorities must ensure the State protection against ill-treatment on grounds of sexual orientation proprio motu. Based on the UNHCR Guidelines and the third-party interventions, the Court opined that the Gambian authorities would neither be able nor willing to provide such protection.

In light of the above assessment, the Court unanimously held that returning individuals to the country, where there was a proved risk of ill-treatment and lack of State protection, had amounted to a violation of Article 3.

Asylum applications to avoid prosecution based on sexual orientation had often been found negative before the Strasbourg Court. However, in the present case, it is the first time that the Court recognises a positive obligation under Article 3 regarding State protection against ill-treatment on grounds of sexual orientation. Therefore, in order to fulfil this obligation, the domestic authorities must undergo a sufficient investigation of risks of ill-treatment from both State and non-State actors whenever considering a deportation case, which grants a higher level of protection to LGBTI persons.