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The case concerns the refusal of a residence permit for the first applicant, B., a Gambian national, first after dismissal of an asylum application, and second, after the registration of the same-sex partnership with the second applicant, C., a Swiss national. Following these refusals, B. was ordered to leave Switzerland. The second applicant died in 2019, during the proceedings before the ECtHR, so the court decided to strike out the complaint lodged by him under Article 8 of the Convention.
Before the ECtHR, B. complained under Article 3 of the Convention about a real risk of being subjected to ill-treatment upon his return to Gambia. The Court found a violation of Article 3 of the Convention and held that sexual identity is part of the identity of a person and no person should be requested to conceal it in order to avoid persecution.
Regarding possible ill-treatment by state actors, the Court looked at the situation in Gambia and concluded that homosexual acts carry a criminal penalty in Gambia. It also held, in accordance with its previous case law (I.I.N. v. the Netherlands, application no. 2035/04, 9 December 2004) and the case law of the CJEU (X, Y and Z v Minister voor Immigratie en Asiel, C-201/12, 7 November 2013), that the mere existence of criminal laws in the country of destination do not render a removal contrary to Article 3 of the Convention. The decisive factor is whether these laws might be applied in practice, which was not the case in the Gambia. The Court also noted that there were no reports of individual acts of “rogue” officers, this may be due to under-reporting and fear of state discrimination.
Regarding possible ill-treatment by non-state actors, the Court held that there are reports of widespread homophobia and discrimination against LGBTI persons. It further held that the Swiss authorities did not properly analyse the availability of State protection and that there are indications of the unwillingness of State authorities to provide such protection.
The Court concluded that in the absence of a fresh assessment of risks, the deportation would constitute a violation of Article 3 of the Convention.
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