Nuno Ferreira, ‘An exercise in detachment: the Strasbourg Court and sexual minority refugees’, in Richard Mole (ed.), Queer migration and asylum in Europe, UCL Press, 2021, pp. 78-108.

Abstract

This contribution explores how the Council of Europe (CoE) – and the European Court of Human Rights (Strasbourg Court), in particular – have addressed the increasing number and complexity of applications involving sexual minority asylum claims (SMACs). The law and policy produced by the CoE and the jurisprudence of the Strasbourg Court immensely influence how domestic authorities address SMACs, so it is crucial to have a thorough understanding of this framework.

Indeed, the CoE has acquired a progressively significant role in the field of asylum. Although it does not have an asylum policy as such, several of its bodies have taken a noteworthy role in this field, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The Strasbourg Court, above all, along with the now extinct European Commission of Human Rights, developed a strong line of jurisprudence that applies the European Convention on Human Rights (ECHR) to asylum claimants, despite the ECHR not possessing any norm explicitly related to asylum.

More specifically, the Strasbourg Court was the first judicial instance at a European level to decide on cases relating to SMACs. It has so far dealt with at least 23 separate cases of asylum on grounds of sexual orientation. Many of these cases led to contentious and inadequate decisions, such as the 2014 judgment in M.E. v. Sweden, which gave legitimacy to the idea that applicants can be sent back to their countries of origin and asked to be ‘discreet’ about their sexuality. This approach reflects a worrying detachment from the realities of sexual minorities in many countries around the world and from their experiences when claiming international protection in Europe.

This contribution thus critiques the CoE policy and Court’s jurisprudence in this field, whilst advancing policy and legal recommendations that can adequately address the socio-cultural and sexual diversity of asylum claimants from a queer intersectional perspective.

Keywords: LGB, queer, Strasbourg, ECHR, ECtHR, human rights, sexual minorities, refugees, asylum, Europe