Sweden must reconsider lesbian applicant's request for asylum

05.11.2013

A lesbian who alleged persecution in Bangladesh has successfully challenged Sweden’s ruling that she should be deported. The Human Rights Committee found that Sweden had violated the author’s right to freedom from cruel and inhuman treatment. 

UN Photo/Jean-Marc Ferré

M.I. v. Sweden (2149/2012)

Summary

In July 2013, the Human Rights Committee was asked to consider whether Sweden had violated its obligations under the International Covenant on Civil and Political Rights in refusing an individual’s application for asylum.

The communication was submitted by a Bangladesh national under the Optional Protocol to the Covenant.

Background

The author of the communication, Ms M.I., used to live in Dhaka, Bangladesh. The author alleges that subsequent to her parents learning that she was lesbian, they arranged a wedding with a Bengali man who lived in Sweden against her will. This marriage took place in Dhaka in January 2006. Shortly afterwards, the author’s husband returned to Sweden.

In June 2006, the author arrived in Sweden with a Swedish temporary residence permit. A month later, the author’s husband forced her to return to Bangladesh after discovering that the author was lesbian. On returning to Bangladesh, the author met her partner, Ms P.A., with whom she started to live.  

In April 2008, the author was arrested by local police and detained for between four and five days after learning that she was lesbian. During her detention, the author was raped and beaten by police. The author’s partner was also kidnapped by an Islamic organisation called Shator Shivir whilst the author was in police detention. The author alleges that she subsequently received threats from this organization and the police. Shortly after her detention, the author returned to Sweden as her Swedish residence permit was due to expire.

On 16 May 2008, the author applied for asylum before the Swedish Migration Board (the Board), stating that she had left Bangladesh to escape from abuse by the police and the Shator Shivir organization. On 14 January 2009, the Board rejected the author’s application for asylum and ordered her return to Bangladesh. The Board based its decision on the fact that the author had not provided sufficient evidence to support her claims. The author appealed this decision before the Migration Court. On 22 December 2009, the Migration Court dismissed the author’s appeal. The Court held that the author had not provided adequate documentary evidence in support of her claim and that the general situation for homosexuals in Bangladesh was not sufficient grounds for granting the author a residence permit. The author’s subsequent application for leave to appeal before the Migration Court of Appeal was also refused.

After receiving these decisions, the author’s psychological state deteriorated. She was hospitalized six times due to depression and risk of suicide. On 24 February 2011, the author filed an application with the Board, requesting that her expulsion order be suspended on medical grounds. On 9 March 2011, the Board dismissed her application, considering that both it and the Migration Court had already adequately assessed the author’s health.

In October 2011, the author submitted a second application to the Board, claiming new circumstances supported her allegations. In addition to new medical documents, the author also submitted independent reports detailing the widespread persecution of homosexuals in Bangladesh. However, both the Board and the Migration Court held that this new information did not merit a re-examination of the author’s case.  

On 7 May 2012, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that Sweden had violated her right to freedom from torture or cruel and degrading treatment under article 7 of the Covenant by ordering her deportation to Bangladesh without adequately taking into account the risk of her being subject to persecution in that country.

The Committee’s decision

In considering the complaint’s admissibility, the Committee noted that the author had exhausted all available domestic remedies and had sufficiently substantiated her claims. As the same matter was not being examined under another procedure of international investigation or settlement, the Committee declared the author’s communication to be admissible.

On the merits, the Committee recalled its General Comment No. 31 in which it refers to States parties’ obligation not to extradite or otherwise remove a person from their territory where there are substantial grounds for believing that there is a risk of irreparable harm. The Committee also recalled that States parties are generally entitled to exercise their discretion in determining the existence of such risk.

In considering the facts of the complaint, the Committee observed that:

(a)                Sweden had not challenged the author’s allegations of rape while in police detention in Bangladesh;

(b)               the author’s sexual orientation was widely-known in Bangladesh society;

(c)                the author suffered from severe depression with there being a high risk of her committing suicide;

(d)               section 377 of the Bangladesh Criminal Code (Section 377) forbids homosexual acts; and

(e)                homosexuals are stigmatised in Bangladesh society.

The Committee considered that the very existence of Section 377 contributed to the stigmatisation of homosexuals and prevented proper investigations into acts of persecution. In deciding her asylum request, the Swedish authorities had also focused unduly on inconsistencies in the author’s account. The Committee therefore considered that Sweden had failed to take the author’s allegations, and in particular those relating to her mistreatment by the police, into due consideration in assessing the risks that she would face if returned to Bangladesh.

In light of the above, the Committee concluded that Sweden had violated the author’s right to freedom from cruel and inhuman treatment under article 7 of the Covenant. In accordance with article 2(3), Sweden was under an obligation to provide the author with an effective remedy, specifically by fully reconsidering the author’s asylum claim taking into account the Committee’s views. In the meantime, the Committee requested that Sweden refrain from expelling the author to Bangladesh while her request for asylum is under reconsideration. The Committee also held that Sweden was under an obligation to take steps to prevent similar violations in the future.

Sweden must now submit its written response within six months of the Committee’s decision, including information on the action taken in light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in Paris.