M. I. v. Sweden, Communication No. 2149/2012, 25 July 2013: Sweden
The facts as submitted by the author
2.1 The author used to live in Dhaka, Bangladesh, where her parents and siblings still live. She alleges that she is lesbian and that her parents learned about this around the end of 2002 or the beginning of 2003. Subsequently, her parents arranged a marriage for her with a Bengali man living in Sweden. The marriage took place on 3 January 2006 in Dhaka against her will. Her husband stayed for a few days in Bangladesh before returning to Sweden.
2.2 In June 2006, the author arrived in Sweden, after receiving a temporary Swedish residence permit. When her husband found out that she was a lesbian, he forced her to return to Bangladesh in July 2006. That same year, she met her partner and they started living together. Due to their low income, they sought aid from a student organization, called Satra Dal (Chhatra Dal). In exchange, the author helped the organization to recruit new members. In April 2008, the police learned that she was lesbian, and arrested and detained her for four to five days. During her detention, she was raped and beaten. During the same period, on 14 April 2008, her partner, Ms. P.A., was kidnapped by the Islamic student organization, called Shator Shivir (Chhatra Shibir), and the author does not know her whereabouts since then. The author alleges that she received threats from this organization and from the police. She was in touch with a sister and, occasionally, with her mother; her father refused to have any contact with her, as he felt that his honour had been harmed because of her behaviour.
2.3 As her Swedish residence permit was valid until May 2008, the author returned to Sweden. On 16 May 2008, she applied for asylum before the Swedish Migration Board. She stated that she had fled Bangladesh to escape abuse by the police and Chhatra Shibir. She claimed that she had been detained by the police for four or five days and raped due to her sexual orientation, and that her partner had been kidnapped by Chhatra Shibir. Moreover, homosexual acts are forbidden under Bangladeshi law and no organization can openly defend the rights of homosexuals. If returned to Bangladesh, she would be at risk of torture and inhuman treatment. She provided a medical report, dated 11 December 2008, which stated that she was depressed and under medication. She felt isolated, helpless and unsafe, and was scared all the time.
2.4 On 14 January 2009, the Migration Board rejected the author’s application for asylum and ordered her return to Bangladesh. The Board pointed out that she did not provide any written proof to support her claims, and concluded that her allegations were not credible. The Board did not believe that she would be at risk of persecution due to her sexual orientation. It stated that the threats allegedly made by her parents, her husband’s family or persons from Chhatra Shibir were criminal acts by individuals, and should be dealt with by the Bangladeshi authorities. Likewise, the author’s detention and rape by the police was an act of misconduct that should have been reported to the authorities. The acts she complains about were never reported to the police or any other relevant authority and she did not show that the authorities were incapable or unwilling to investigate these allegations or to protect her. The Board further noted that although homosexual acts are forbidden by Bangladeshi law, it is not clear whether the law is actually enforced. Finally, the Board pointed out that the author had left Bangladesh without any difficulties using her own passport, which showed that she was not wanted by the Bangladeshi authorities. Moreover, it noted that she had arrived in the State party for the first time in 2006, but applied for asylum only in 2008. Therefore, it concluded that she did not feel an urgent need for protection.
2.5 The author appealed this decision before the Swedish Migration Court. She asserted that the Migration Board’s decision focused its assessment on information that the Bangladesh law prohibiting homosexual acts was not applied. However, the Board failed to assess all the elements related to her case, in particular her forced marriage and departure to Sweden, as a way of making her change her sexual orientation, and the abuses to which she and her partner were subjected in Bangladesh. As a victim of rape by the police, she could not have gone to the police for help. Moreover, the Migration Board ignored how homosexuals are generally treated in Bangladeshi society. She had provided two medical reports, dated 28 May and 19 October 2009, which stated that she suffered from severe depression due to her fear of returning to Bangladesh and her family’s rejection of her sexual orientation. Despite medication, her situation had worsened and there was a high risk of suicide.
2.6 On 22 December 2009, the Migration Court dismissed the author’s appeal. It stated that the author did not provide any documentation in support of her claim and that the general situation for homosexuals in Bangladesh was not sufficient grounds for it to grant the author a residence permit in the State party. Furthermore, there were inconsistencies in her allegations and the information she provided was vague and not credible. The inconsistencies relate in particular to the manner in which her husband had learned about her sexual orientation, and when and in what circumstances she was made to leave her parents’ house. The information she provided about her allegations regarding persecution by Chhatra Shibir was vague and insufficient. With regard to the alleged disappearance of her partner, the Court upheld that the author’s assertion that neighbours had seen her partner being taken away by men with beards was not enough to conclude that she had been kidnapped by Chhatra Shibir. Furthermore, since the author had failed to file a complaint about that event, it could not be concluded that she would be at risk due to her partner’s disappearance. Regarding her allegations of arrest, physical abuse and rape by the police, the Court reiterated the Migration Board’s position that this aggression was a criminal act committed by individual policemen and there was no reason to believe that they would not have been investigated and sanctioned by the authorities. The Migration Court concluded that the author had failed to show that she would risk persecution if returned to Bangladesh.
2.7 The author submitted an application for leave to appeal before the Migration Court of Appeal. On 5 May 2010, the Court decided not to grant her leave to appeal.
2.8 After the migration authorities’ decision to return the author to Bangladesh, her psychological state worsened. She was hospitalized six times due to deep depression and risk of suicide. On 24 February 2011, she submitted an application to the Migration Board under chapter 12, sections 18 and 19, of the Aliens Act, requesting non-execution of the expulsion order for medical reasons. She argued that during the previous interviews with the Board she had felt shame, given in particular the presence of men. There were also misunderstandings during the interviews due to interpretation. On 9 March 2011, the Migration Board dismissed her application. The Board considered that the author’s state of health had already been assessed by both the Migration Board and the Migration Court. Moreover, the provision laid down in chapter 12, section 18, of the Aliens Act is applicable to situations in which the person is so severely ill that return is, in principle, impossible.
2.9 In October 2011, the author submitted a second application to the Migration Board, putting forward new circumstances to support her allegations regarding risk of persecution or torture and other cruel, inhuman or degrading treatment or punishment if returned to Bangladesh. She submitted as evidence a copy of an application to the Cerani Gong police station in Dhaka about the disappearance of her partner, filed by her partner’s brother. She also submitted an article published in the newspaper Dainik Nowroj on 13 April 2011, which deals with lesbianism in Bangladesh. This article makes reference to a 2008 article which commented on the author’s relationship with Ms. P.A. The 2011 article indicated that the previous article had received much attention throughout the country and that, as a result, the author and her partner had gone into hiding and no one knew where they were. The 2011 article also included the opinion of a sociology professor from the University of Dhaka, declaring that relationships like that of the author and her partner were signs of the negative effect that Western culture had on Bangladeshi society. The author also submitted a new medical report which reflects her statements that, due to her sexual orientation, she was mentally and physically abused by her husband, the police had arrested, beaten and raped her, and her family did not want to have contact with her. According to the medical report, she lived in great fear and was in need of medication and counselling as she was severely traumatized and suffered from severe depression without psychotic symptoms. Finally, the author submitted reports about the human rights situation in Bangladesh and the risk of persecution faced by lesbian, gay, bisexual and transgender persons (LGBTs). On 15 February 2012, the Migration Board rejected the application.
2.10 The author appealed the Migration Board’s decision to the Migration Court. On 9 March 2012, the Court concluded that there were no new circumstances to render a re-examination of the case necessary. The author then lodged an application for leave to appeal before the Migration Court of Appeal. On 23 March 2012, the Court of Appeal denied the leave.
2.11 On 10 and 15 January 2013, the author informed the Committee that lesbians are stigmatized in Bangladesh and often face extreme family and social pressure to marry a man. Chhatra Shibir is an extremist Islamic organization whose goal is to establish an Islamic system in Bangladesh. The fact that there is little information about persecution of sexual minorities by Chhatra Shibir is an indication of how difficult the situation in Bangladesh is for homosexuals.
2.12 The author stated that she was living illegally in Sweden and that the decision to expel her to Bangladesh could be executed by the police at any time. Moreover, the Migration Board informed her that she had no right to a daily allowance or housing. Without this aid, she had no financial means nor a place to stay in the State party. She also informed the Committee that the Migration Board had refused to re-register her as an allowance beneficiary. She feared being placed in administrative detention while awaiting expulsion.
Consideration of the merits
7.2 The Committee notes the author’s claim that her return to Bangladesh would expose her to a risk of torture and other cruel, inhuman or degrading treatment or punishment, due to her sexual orientation. Prior to her last arrival in the State party, her family had forced her to marry a Bangladeshi man; she had been harassed by the organization, Chhatra Shibir, and the Bangladeshi police; while in police custody she was raped by policemen; her partner was kidnapped by members of Chhatra Shibir and her whereabouts are still unknown. Bangladeshi law forbids homosexual acts and LGBT individuals lack protection from the authorities, who are neither willing nor able to protect them. Although this law is not systematically applied, its existence reinforces a general climate of homophobia and impunity for State and non-State agents who persecute LGBT individuals. Furthermore, homosexuality is harshly stigmatized in Bangladeshi society and lesbians are often subjected to intimidation and ill-treatment and forced by their families to marry men. As a result of all the events she experienced, the author’s mental health has been severely affected. The author also claims that she provided relevant evidence that was not given due weight by the State party’s authorities, in particular a copy of an article published in the newspaper Dainik Nowroj on 13 April 2011 that made reference to her sexual relationship with her partner, Ms P.A., which had previously been described in a newspaper article in 2008 that had received much attention throughout the country.
7.3 The Committee takes note of the State party’s arguments that the author lacks credibility, as her statements regarding persecution by the police and Chhatra Shibir were vague and she had not provided any written documentation to support her claims in the asylum proceedings. Furthermore, the State party considers the alleged arrest and rape of the author to be the result of misconduct on the part of policemen, and that her claim that she had been threatened by Chhatra Shibir, which is responsible for her partner’s kidnapping, lacked concrete evidence. The State party also argues that, notwithstanding the Bangladesh law criminalizing homosexual acts and concerns about the human rights situation regarding LGBT individuals, the law is not applied in practice. In addition, the documentation submitted by the author with her second application to the Migration Board is considered of low value as the authorities cannot verify its authenticity.
7.4 The Committee recalls its general comment No. 31 in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant. The Committee also recalls that, generally speaking, it is for the organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine the existence of such risk.
7.5 In the present communication, the Committee observes, based on the material before it, that the author’s sexual orientation and her allegations of rape by Bangladeshi policemen while in detention was not challenged by the State party. It also observes that her sexual orientation was in the public domain and was well known to the authorities; that she suffers from severe depression with high risk of committing suicide despite medical treatment received in the State party; that section 377 of the Criminal Code of Bangladesh forbids homosexual acts; and that homosexuals are stigmatized in Bangladesh society. The Committee considers that the existence of such a law in itself fosters the stigmatization of LGTB individuals and constitutes an obstacle to the investigation and sanction of acts of persecution against these persons. The Committee considers that in deciding her asylum request the State party’s authorities focused mainly on inconsistencies and ambiguities in the author’s account of specific supporting facts. However, the inconsistencies and ambiguities mentioned are not of a nature as to undermine the reality of the feared risks. Against the background of the situation faced by persons belonging to sexual minorities, as reflected in reports provided by the parties, the Committee is of the view that, in the particular case of the author, the State party failed to take into due consideration the author’s allegations regarding the events she experienced in Bangladesh because of her sexual orientation — in particular her mistreatment by the police — in assessing the alleged risk she would face if returned to her country of origin. Accordingly, in such circumstances, the Committee considers that the author’s deportation to Bangladesh would constitute a violation of article 7 of the Covenant.
Link to full text of the report: Communication-CCPR-Sweden-2013-eng
- 1. Section 377 of the Criminal Code of Bangladesh states that “any person who voluntarily has sexual intercourse against the order of nature with a man, woman or animal, shall be punished with imprisonment of up to 10 years or for life.”↵
- 2. The Committee notes that the Migration Board’s decision refers to the Swedish Ministry of Foreign Affairs’ report on human rights in Bangladesh, 2007, and to the United Kingdom: Home Office, Country of Origin Information Report – Bangladesh, 31 August 2007.↵
- 3. A copy of the medical report, dated 14 October 2011, is in the Committee’s file.↵
- 4. The author refers to reports by the Office of the United Nations High Commissioner for Refugees (UNHCR) and International Crisis Group, as well as the report, Fleeing homophobia: Asylum claims related to sexual orientation and gender identity in Europe, by Sabine Jansen and Thomas Spijkerboer, COC Nederland and University of Amsterdam, September 2011.↵
- 5. The author submitted to the Committee reports from States and NGOs about the situation in Bangladesh, including United States Department of State, 2010 Human Rights Report: Bangladesh (April 2011); United Kingdom: Home Office, Bangladesh – Country of Origin Information Report (23 December 2011); Human Rights Watch, World Report 2011: Bangladesh, Events of 2010 (January 2011); Immigration and Refugee Board of Canada, Bangladesh: Treatment of homosexuals, including legislation, availability of state protection and support services (19 July 2010); and Citizens’ Initiatives on CEDAW-Bangladesh, Combined sixth and seventh UN CEDAW alternative report (July 2010). According to the report of the U.S. Department of State, in practice the law that criminalizes homosexual acts is rarely enforced. In general, there is no information concerning persecution of homosexuals and homosexual rights organizations remain informal and are unable to set up permanent establishments due to the possibility of police raids. In addition, the author’s references to these reports highlight the fact that homosexual acts are criminalized in Bangladesh under section 377 of its Criminal Code. Some reports refer to the situation of lesbians in Bangladesh and note that the fate of virtually all Islamic women is marriage and motherhood. Lesbians are objects of rejection and social derision, and lesbianism is kept secret for fear of loss of marriage prospects. On the other hand, Citizens’ Initiatives states that new research shows that sexually marginalized populations, especially those belonging to the hijra or transgender/trans-sexual community, are systematically persecuted by State agents through section 54 of the Penal Code, which allows for arrest without warrant in case of “suspicious” behaviour. It further states that the police are notorious for gross infringements of the rights of sexual minorities through invoking section 54, and that harassment, physical and sexual abuse and extortion, as well as arbitrary arrest and detention, are standard forms of violence faced by these groups.↵
- 8. See the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 12, Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 40, vol. I (A/59/40 (Vol. I)), annex III.↵