A Kenyan woman applied for asylum in Switzerland on 1 March 2025, alleging persecution based on her sexual orientation. She claimed that after a consensual encounter with another woman in 2024, she was assaulted by the woman’s father and subsequently received anonymous threats. She also stated that police officers questioned her but released her the same day, and that she later left Kenya to Switzerland legally using her passport and a Schengen visa.

On 20 June 2025, the State Secretariat for Migration (SEM) denied her asylum claim and ordered her removal.  While acknowledging that LGBTIQ persons may face social stigma in Kenya, the SEM found that same-sex acts between women are not criminalised and that the applicant had not demonstrated a real risk of persecution or lack of State protection.

The applicant appealed to the Federal Administrative Court on 25 July 2025. She submitted reference letters from her family and medical reports to support her claims. She argued that although the Kenyan Penal Code did not expressly prohibit same-sex relations between women, the police often used general public order laws to harass and discriminate LGBTIQ persons. She additionally held that the Kenyan state was neither capable nor willing to protect lesbian women, and that the SEM had not considered this circumstance in its assessment. She referred to reports describing police harassment and increased stigmatisation of LGBTIQ persons in Kenya.

In its reasoning, the Federal Administrative Court held that the applicant did not meet the requirements for being granted refugee status. It stated that there was no credible evidence that she was subject to persecution by the state or by private actors at the time of the appeal. While the court recognised social stigma and institutional discrimination against homosexuals in Kenya, it found no indication of a systemic state campaign against homosexuals. It noted that homosexual acts were only punishable if committed by men, and that in any case, it was unlikely for homosexuality to lead to sanctions if discovered by the Kenyan state. The probability of prosecution was thus particularly low for female homosexuals.

The court noted that the applicant’s claims of harassment concerned alleged persecution by non-state actors and reiterated that, based on the principle of subsidiarity, refugee status can be claimed only if the person cannot have adequate protection from persecution in the country of origin. The court further held that Kenya has functioning institutions capable of protecting victims of violence, including those belonging to the LGBTIQ community, and that the applicant had not attempted to seek such protection, contrary to the principle of subsidiarity. Additionally, the court held that the acts recounted by the applicant did not reach the threshold of severity and intensity required by Article 3 of the Asylum Act (AsylG), given that the threats she cited were anonymous, brief, and resulted in no further harm to her or her family. The court also emphasised that she had been able to apply for a Schengen visa, collect her passport and leave Kenya legally. 

Regarding the removal order against the applicant, the court held that under Article 44 of the AsylG and Article 83 of the Foreign Nationals and Integration Act (AIG), removal was lawful, reasonable, and possible. It noted that Kenya was not affected by war or generalised violence, that the applicant had family support there and that her psychological distress did not make removal unenforceable.

In conclusion, the Federal Administrative Court dismissed the appeal, confirmed the SEM’s negative decision on  asylum, and upheld the removal order.