MI v Switzerland: consolidating jurisprudence on asylum on grounds of sexual orientation European Court of Human Rights (Chamber): Judgment of 12 November 2024

On 12 November 2024, the European Court of Human Rights (ECtHR) passed judgment in the case of MI v Switzerland. MI was an Iranian man whose asylum claim on the grounds of sexual orientation was rejected by the Swiss authorities. MI v Switzerland represents, in many respects, a consolidation of the reasoning established in the 2020 case of B and C, also against Switzerland. B and C was the first non-refoulement case concerning a risk of ill-treatment for reasons of sexual orientation in which the ECtHR found that the return of an individual would constitute a breach of art.3 ECHR without a fresh risk assessment by the domestic authorities. The case of MI v Switzerland reiterates key points made in the Strasbourg Court’s preceding judgment in B and C v Switzerland. It relies on the United Nations High Commissioner for Refugees (UNHCR) Guidelines No.9 as international authority for these key considerations: <br/>(1) In countries criminalising homosexuality, the risk assessment of returning States must be based on the assumption of the risk of discovery of the individual’s sexuality or of the individual being "open" in the expression of their sexuality. There is no place for arguments of "de facto" discretion (i.e. assumptions that a person, as a matter of personal preference or for any other reason unrelated to any fear of ill-treatment or persecution, will live "discreetly" or otherwise mask or hide their sexuality such that it will not come to the attention of potential persecutors).<br/>(2) Persecution by the authorities of the State is not limited to the question of whether or not criminal laws in place are applied in practice. The possibility of persecution by "rogue" State agents must be taken into account.<br/>(3) In a similar manner, the risk of persecution by non-state actors is not limited to family members. Instead, the assessment must evaluate the risk emanating from all members of society.<br/>(4) In a country that has laws criminalising homosexuality, it is unreasonable to expect an applicant to seek State protection. Rather, the authorities of the receiving State have the burden of proving in fact the availability of State protection.