EGMR

[...]

35. The Swiss authorities did not dispute that the applicant was homosexual, or that homosexual men in Iran faced risks from both state and non-state actors. However, they did not find the applicant’s allegations regarding the compromising photographs and the subsequent problems with his family credible for the following reasons:

(1) The alleged conflict between the applicant’s boyfriend and their mutual friend M. seemed implausible, as it was unlikely that the applicant would not have known the reasons for it, given its significance for his subsequent life. Moreover, the applicant and his boyfriend had spent two months together in Türkiye after fleeing Iran, which further cast doubt on the alleged conflict and the allegation that the compromising photographs had been sent to the applicant’s brother.

(2) The applicant had failed to provide a plausible explanation for having the compromising photographs on his mobile phone without adequate security, given that he worked in a mobile phone shop and was aware of "a context as dangerous as that of Iran, where homosexuals are exposed to a high risk of severe persecution by the State". It was therefore not credible that the photographs existed and that the applicant’s family had access to them.

(3) The applicant’s accounts of the altercation with his father and brothers in the mobile shop were inconsistent and lacking in detail. His descriptions during the initial interviews were superficial and his subsequent elaborations, prompted by additional questions, were unspecific and lacked emotion, which further undermined their credibility.

36. According to the Government, the applicant would not be at risk of ill-treatment if returned to Iran for the following reasons:

(1) Homosexual people were not subject to collective persecution in Iran and the mere criminalisation of homosexuality did not automatically lead to a serious risk of ill-treatment. The applicant did not claim to face a real risk of persecution; his homosexuality appeared to be known only to the local gay community, in which he had integrated without any problems.

(2) The abstract risk of exposure in Iran did not amount to intolerable psychological pressure, given that the applicant had lived there openly as a homosexual man for at least eight years without any significant problems. According to his own statement to the immigration authorities, he would not have left Iran had it not been for the alleged family dispute. In addition, he had been able to avoid the family pressure to marry a woman by limiting contact with his family. He would be able to continue living in the same way after his return to Iran.

(3) As the applicant’s allegations about the sending of compromising photographs and the ensuing dispute were not credible, there was no reason to believe that he had been subjected to intolerable psychological pressure or persecution on account of his homosexuality. It was therefore unlikely that he would be persecuted in Iran, either by the authorities or by private individuals. The question of whether the Iranian authorities would be willing and able to protect him in the event of a risk of ill-treatment by private individuals did not arise in his case.

37. Domestic procedure complied with the requirements of the Convention: the applicant had had an interpreter at every hearing, had had legal representation throughout and had been able to lodge appeals with suspensive effect. Moreover, he had failed to show that there was a generalised practice among European States of systematically granting asylum to homosexual Iranian applicants. [...]

38. The UNHCR emphasised that the fact that an applicant may be able to avoid persecution by concealment or exercising "restraint", or has done so in the past, is not a valid reason for denying refugee status. Concealing one’s sexual orientation does not merely require individuals to be "discreet", but to "live a lie" about a fundamental aspect of their identity, while facing serious sanctions if their identity is discovered. Even if LGBTQI people have been able to avoid harm through secrecy, their circumstances may change over time and secrecy may not be an option for the rest of their lives. The risk of exposure may also not necessarily depend solely on their own behaviour. Even if LGBTQI persons are discreet, they may still be at risk of exposure and related harm because they do not conform to heterosexual social norms (for example, by not marrying or having children). Denying refugee status and forcing individuals to be "discreet" or to conceal their sexual orientation and/or gender identity can have serious consequences for mental and physical health, and may lead to an intolerable situation amounting to persecution. It is also incompatible with the protective purpose of the Convention.

39. Given the importance of Article 3 of the Convention and the irreversible nature of the harm likely to be caused by ill-treatment, it is the duty of the national authorities to carry out a thorough and rigorous assessment in order to dispel any doubt that a particular claim for asylum is unfounded. In the context of asylum claims based on sexual orientation, the assessment should include an objective and factual examination of the nature of the applicant’s situation and whether it amounts to persecution. In this context, the role of the decision-maker is to assess the risk - whether the fear of persecution is well-founded - and not to prescribe behaviour - what the applicant should or should not do.

40. The examining authority is expected to assess all relevant elements that are material to the determination of refugee status. The rejection by the State authorities of relevant documentary evidence submitted by the applicant without sufficient investigation was contrary to this requirement of close and rigorous examination. [...]

41. The organisation submitted that the Court must take into account the reality that a homosexual man returned to a state such as Iran must effectively prove that he is heterosexual in order to live discreetly. A need to conform with what a potential persecutor would consider acceptable "proof" of heterosexuality would potentially expose homosexual people to forced marriage, the risk of threats, extortion and blackmail, harassment, pressure to undergo gender reassignment surgery, violence and "honour" killings by non-state actors, including family members. In assessing an applicant’s claim the Court should therefore assess the risk on the basis of the applicant’s identity and the presumed risk of return. This requires an assessment of whether, at the time of the assessment, the applicant fits the heterosexual stereotype of the potential persecutor. Failure to fit this heterosexual profile would mean that return would give rise to a risk contrary to Article 3 of the Convention. [...]

47. Since the applicant has not yet been removed to Iran, the question whether he would face a real risk of ill-treatment if returned there must be examined in the light of the current situation.

48. The Court considers that the general human rights situation in Iran is not in itself such as to preclude the expulsion of any Iranian national. It must therefore assess whether the applicant’s personal circumstances are such that he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention if deported to Iran.

49. First, unlike in the cases in which the applicant’s sexual orientation raised credibility concerns (see, for example, I.K. v. Switzerland (dec.), no. 21417/17, §§ 27-28, 19 December 2017, and A.N. v. France (dec.), no. 12956/15, §§ 43-44, 19 April 2016), it is not disputed by the parties that the applicant is homosexual. Second, the parties agree that a person’s sexual orientation is a fundamental part of his or her identity and that no one may be obliged to conceal his or her sexual orientation in order to avoid persecution (see B and C v. Switzerland, nos. 889/19 and 43987/16, § 57, 17 November 2020, and I.K. v. Switzerland, cited above, § 24). Thirdly, it is not disputed by the parties that homosexuals in Iran are at risk from both State and non-State actors.

50. In the light of the foregoing, the Court considers that, whether or not the applicant’s sexual orientation is currently known to the Iranian authorities, family members or the population, it could be discovered subsequently if he were to be removed to Iran (see also paragraph 32 of the UNHCR Guidelines, cited in paragraph 20 above). The Court therefore cannot agree with the Swiss authorities’ assessment that it is unlikely that the applicant’s sexual orientation would come to the knowledge of the Iranian authorities or population (see paragraphs 10 and 36 above).

51. In so far as the applicant alleges a risk of ill-treatment at the hands of the authorities, the Court notes that homosexual acts remain criminalised and subject to severe punishment under Iranian law. The Court has held that the mere existence of laws criminalising homosexual acts in the country of destination does not render a person’s expulsion to that country contrary to Article 3 of the Convention; what is decisive is whether there is a real risk that these laws will be applied in practice (see B and C v. Switzerland, cited above, § 59). In respect of Iran, reports - and the submissions of the parties - indicate that prosecutions of LGBTI persons under these laws do take place in practice (see paragraphs 22-23 above).

52. Furthermore, persecution based on sexual orientation by State actors may also take the form of individual acts of "rogue" officials (see paragraph 34 of the UNHCR Guidelines in paragraph 20 above). While no such acts were mentioned in the recent reports on Iran, the UN Human Rights Council and the UK Home Office indicated that this could be due to under-reporting (see respectively, the report referred to in paragraph 21 above and paragraphs 2.4.17, 2.4.18 and 6.3.1 of the report referred to in paragraph 22 above) and that LGBTI persons who openly express their sexual orientation and/or gender identity are likely to face discrimination by State actors (see the reports referred to in paragraph 21 and paragraph 2.153 of the report referred to in paragraph 23 above).

53. The Swiss authorities dismissed the applicant’s claim of persecution by his family members as not credible (see paragraphs 9 and 10 above). The Court sees no reason to depart from that assessment, as the national authorities are better placed to assess the credibility of an individual since they have had the opportunity to see, hear and assess his or her behaviour (see F.G. v. Sweden, cited above, § 118). The question of past ill-treatment as an indication of a real risk of future ill-treatment therefore does not arise (unlike in J.K. and Others v. Sweden, § 114, cited above).

54. However, ill-treatment may also be perpetrated by non-State actors other than family members (see paragraph 35 of the UNHCR Guidelines referred to in paragraph 20 above). International reports reflecting the most recent information on the situation of LGBTI rights in Iran point to widespread homophobia and discrimination against LGBTI persons following years of hatred stirred up by State actors (see paragraph 28 of the report referred to in paragraph 21, paragraphs 2.4.18 and 2.5.3. of the report in paragraph 22 and paragraph 23 above). The international sources stressed that such risks have even increased following the deterioration of the general human rights situation in Iran (see paragraphs 24-26 above).

55. In the light of the above information, the question arises as to whether the Iranian authorities would be able and willing to provide the applicant with the necessary protection against ill-treatment on grounds of his sexual orientation at the hands of non-State actors. The availability of such State protection should have been determined by the Swiss authorities (see J.K. and Others v. Sweden, § 98, and B and C v. Switzerland, § 62; both cited above,). However, since the domestic authorities took the view that it was unlikely that his sexual orientation would come to the knowledge of the Iranian authorities or population and that he therefore faced no real risk of ill-treatment, they did not carry out an assessment of the availability of State protection against harm at the hands of non-State actors, having declared that such a question did not arise in his case (see paragraph 36 above). The Swiss authorities therefore failed to carry out the necessary assessment and ignored the issue that underpinned the applicant’s claims.

56. International sources indicate that the Iranian authorities would be unwilling to provide the applicant with effective protection against ill-treatment at the hands of non-State actors, and that it would be unreasonable to expect an LGBTI person to seek protection from the authorities given the continued criminalisation of same-sex sexual conduct in Iran (see paragraphs 2.5.3 and 2.5.4 of the report referred to in paragraph 22, and the reports referred to in paragraphs 23 and 41 above). Similarly, the UNHCR considers that laws criminalising same-sex relations are usually an indication that State protection is not available to LGBTI persons (see paragraph 36 of the UNHCR Guidelines in paragraph 20 above).

57. In the light of the foregoing, the Court concludes that the domestic courts did not sufficiently assess the applicant’s risk of ill-treatment as a homosexual man in Iran or whether State protection against ill-treatment by non-State actors was available. Accordingly, the Court considers that the applicant’s removal to Iran without a fresh reassessment of these issues would result in a violation of Article 3 of the Convention. [...]