Migration, Sexual Orientation, and the European Convention on Human Rights

Issues relating to migration have long been aspects of the discrimination that gay men and lesbians in Europe have experienced and attempted to challenge by using the European Convention on Human Rights. In this article, we critically assess the ways in which the European Court of Human Rights has developed the protection of sexual minorities under the Convention in respect of two aspects of migration: residency and asylum. We consider a number of issues that have been addressed by the Court, such as the extent to which bi-national same-sex couples should have the right to remain together in a Council of Europe member state, and the protection that should be extended to gay and lesbian asylum seekers attempting to resist repatriation to a country where they would not be free to establish a sexual relationship with a same-sex partner. Our analysis of the Court’s jurisprudence shows the existence of a ‘two track’ system in which the Court adopts a dynamic interpretation of the Convention in respect of residency but a conservative interpretation of the Convention in respect of asylum. We argue that this approach is problematic because, not only is it inconsistent with the Court’s general principles on asylum, it systematically fails to protect gay men and lesbians from having to live in circumstances where they would have no opportunity to establish a private and family life.