ECtHR: States Must Recognize Equal Eligibility, Vulnerability of LGBT Migrants


European Court of Human Rights
Credit: Adrian Grycuk

The European Court of Human Rights (ECtHR) found violations of the rights to non-discrimination and liberty in two recent cases involving applicants who identify as homosexual. In Taddeucci and McCall v. Italy, the ECtHR held Italy’s rejection of a family-based residence permit for an Italian man’s same-sex partner amounted to discrimination on the basis of sexual orientation because while same-sex partners were not similarly situated to opposite-sex couples, they were treated the same as opposite-sex partners, resulting in a denial of rights. See ECtHR, Taddeucci and McCall v. Italy, no. 51362/09, Judgment of 30 June 2016 (French). In O.M. v. Hungary, the Court held that the State should have taken into account an asylum seeker’s vulnerability as a gay man as part of an individualized assessment required by domestic law before keeping him in detention, and should have done its best not to expose him to the same risks from which he was fleeing. See ECtHR, O.M. v. Hungary, no. 9912/15, Judgment of 5 July 2016. Both cases contribute to the growing body of case law that protects the rights and safety of persons who identify as homosexual or in a same-sex relationship. The O.M. case is apparently the first ECtHR decision to discuss the safety of an asylum seeker in detention who claims membership in a vulnerable group based on his sexual orientation, and Taddeucci and McCall joins the ECtHR’s growing jurisprudence on non-discrimination in the context of same-sex couples.

Taddeucci and McCall v. Italy: Facts and Arguments

In Taddeucci and McCall v. Italy, Taddeucci and McCall, Italian and New Zealand nationals, respectively, and unmarried partners, first moved to Italy together in December 2003 and later sought a family-based residence permit for McCall in light of his expiring student residence permit. See ECtHR, Taddeucci and McCall v. Italy, no. 51362/09, Judgment of 30 June 2016, paras. 8, 9. After the chief of police rejected McCall’s application, the couple took their application to the Italian courts. Although the civil court initially held that Italian law should be interpreted to include same-sex partners within the meaning of “family,” the decision was overturned by the Florence Court of Appeal and dismissed by Italy’s highest appellate court, which concluded that the statutory concept of “family member” included spouses but not unmarried partners, rendering McCall ineligible for the residence permit. See id. at paras. 10, 13, 20, 21. Italy further argued that no discrimination had taken place because Italian law denied residency on family grounds to all unmarried partners, regardless of their sexual orientation. See id. at para. 22.

Turning to the ECtHR, McCall argued that Italy’s rejection of his residency application was a form of discrimination based on sexual orientation under Article 14 (prohibition of discrimination) together with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR). See id. at para. 35.

ECtHR’s Decision

The ECtHR held that by treating unmarried same-sex couples in the same manner as unmarried heterosexual couples in terms of residency, Italy had violated the right to nondiscrimination taken together with the right to family life under the European Convention. See id. at paras. 98 – 99. The ECtHR first explained that the principle of non-discrimination prohibits differential treatment of persons in similar situations, as well as failure to treat differently persons whose situations are dramatically different. See id. at para. 81. The ECtHR acknowledged that the unmarried same-sex couple had been treated the same as an unmarried heterosexual couple with regard to family-based petitions for residence – neither obtained family status under Italian law. See id. at para. 82. However, unlike heterosexual couples, same-sex couples were unable to marry in Italy, making obtaining residency impossible. See id. at para. 83. The ECtHR concluded that Taddeucci and McCall had endured the same treatment as a differently situated group – namely, heterosexual couples who chose not to marry. See id. at paras. 94-95. While protecting the traditional family is sometimes a legitimate aim under Article 14, the ECtHR held, it was not sufficiently compelling in this case to justify discrimination on the basis of sexual orientation. See id. at para. 93.

O.M. v. Hungary: Facts and Arguments

O.M., an Iranian national and homosexual man, entered Hungary without permission in June 2014. See ECtHR, O.M. v. Hungary, no. 9912/15, Judgment of 5 July 2016, paras. 7, 9. When border control took him into custody because he lacked official documents, he explained that his sexual orientation had forced him to flee Iran, where he faced severe criminal charges for being gay. See id. at paras. 8–9. The Hungarian Office of Immigration and Nationality ordered his detention on the ground that his identity and nationality were unconfirmed without documents and that he posed a flight risk if left free. See id. at para. 10. The Office of Immigration and Nationality then requested that a district court extend his detention from 72 hours to a total of 60 days, arguing that Iranian asylum seekers commonly absconded. See id. at para. 11. In a hearing that lasted five minutes, the district court granted this extension, stating that other measures, such as a payment of bail or a requirement to check in consistently, were insufficient. See id. at para. 12.

Article 5 of the Convention enshrines the fundamental right to liberty, which may only be abridged in a limited number of circumstances identified within the provision. One of these exceptions, listed in Article 5 section 1 (b), allows States to limit an individual’s liberty if doing so is meant to secure the fulfillment of a legal obligation. See ECHR, art. 5. Before the European Court, Hungary argued that O.M.’s prolonged detention was justified under this provision because Hungarian law required O.M. to produce tangible evidence of his identity and nationality before obtaining asylum recognition. See id. at para. 34. Hungary added that detention was also necessary to prevent O.M. from running away, a risk it supported by citing statistics of asylum seekers who do so and by pointing out that he had entered Hungary without authorization and did not affirmatively seek asylum. See id. at para. 35.

ECtHR’s Decision

The ECtHR held that O.M.’s detention was arbitrary, violating his right to liberty, because there were less restrictive means of ensuring fulfillment of his obligations under the law. See id. at paras. 45-54. Article 5, the ECtHR explained, only allows a detention if securing an “obligation prescribed by law” cannot be fulfilled by milder means. See id. at para. 43. The ECtHR found that Hungarian law did not actually require O.M. to provide documentation of his identity and nationality. See id. at para. 49. The applicant was required to work with officials to prove his identity, and the Hungarian law allows an asylum seeker who is not in possession of official documents to “do his best to prove his identity.” See id. at para. 50. The ECtHR found that O.M. had made reasonable efforts to prove his identity and nationality. See id. at para. 51.

The ECtHR also highlighted the lack of individualized consideration given to O.M., in violation of the domestic legal requirement to conduct an individualized assessment for asylum detention. See id. at para. 52. The authorities had justified his continued detention by contending he posed a flight risk, but the ECtHR found this conclusion lacked meaningful support and did not take into account the applicant’s particular situation. See id. at para. 52.

The ECtHR further found that O.M.’s sexual orientation warranted additional individualized consideration by authorities, who had a duty to exercise particular care with members of vulnerable groups. See id. at para. 53. It noted, “the Court considers that, in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place.” See id. The ECtHR held that the authorities in this case had erred by prolonging O.M.’s detention without evaluating the risk he faced in detention due to his membership in a vulnerable group based on his sexual orientation. See id. at para. 53. Because it found no specific legal obligation justifying O.M.’s detention, it found the State in violation of Article 5(1)(b). Id. at para. 54.

Background: Sexual Orientation in the ECtHR

The ECtHR has previously found a violation of the right to nondiscrimination where a same-sex partner sought a family-based residence permit, placing discrimination against same-sex couples applying for family-based residency within the larger body of case law on discrimination based on homosexuality, which has often involved right to respect for family life. See, e.g., ECtHR, Pajić v. Croatia, no. 68453/13, Judgment of 23 February 2016; ECtHR, E.B. v. France, no. 43546/02, Judgment of 22 January 2008; ECtHR, X and Others v. Austria, no. 19010/07, Judgment of 19 February 2013. Following the reasoning in Taddeucci and McCall v. Italy, the Court may find a violation of an LGBT person’s right to non-discrimination and other rights, such as family life, if the applicant is similarly situated to heterosexual couples but treated differently, or is not in a similar situation to heterosexual couples but is treated similarly. See id.

The Court has continued to find that States enjoy a margin of appreciation in determining whether to allow homosexual marriage, holding that there is no violation of the right to non-discrimination if the State does not provide within its domestic law for same-sex marriage. See, e.g., ECtHR, Schalk and Kopf v. Austria, no. 30141/04, Judgment of 24 June 2010.

The right to liberty, on the other hand, has rarely been examined by the ECtHR in cases involving the safety of or discrimination against homosexual applicants. The O.M. v. Hungary decision is significant in this respect, but it is not the first case of its kind. Five years ago, the ECtHR found a violation of the right to liberty in another case involving prolonged detention of gay asylum seekers in Hungary. In Lokpo and Toure v. Hungary, the applicants entered Hungary without authorization and sought asylum after being persecuted in their homeland because of their sexual orientation. See ECtHR, Lokpo and Toure v. Hungary, no. 10816/10, Judgment of 20 September 2011, para. 6. They alleged that their detention from April to September 2009 was unlawful. See id. at para. 10. While the ECtHR, as in O.M., held that the applicants’ detention was arbitrary because it lacked an articulable justification, the decision did not discuss whether or how authorities should have considered their vulnerability in deciding whether to detain them. See id. at para. 24.

Additional Information

The international human rights community has recently made statements on the protection of LGBTI persons and taken action towards monitoring adequate protection of the LGBTI community. The United Nations Human Rights Council voted on June 30, 2016 to establish an independent expert on the “protection against violence and discrimination based on sexual orientation, and gender identity.” [HRW]

The European Court of Human Rights provides summaries of its case law on nondiscrimination and sexual orientation in its factsheet on the topic.

For more information on the European Court of Human Rights, sexual orientation and gender identity issues in international human rights law, independent experts, and civil and political human rights, visit IJRC’s Online Resource Hub.