CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juin 2014

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s701081D1 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:left } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s9732F2A { width:183.3pt; display:inline-block } .sDDAA72DD { width:1.14pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s2D726B78 { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s944BDE53 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sE9E4B253 { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super; color:#0069d6 } .s2C539507 { margin:0pt 14.2pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FIFTH SECTION             CASE OF M.E. v. SWEDEN   (Application no. 71398/12)             JUDGMENT     STRASBOURG   26 June 2014       THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 08/04/2015   This judgment may be subject to editorial revision.   In the case of M.E. v. Sweden, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Ann Power-Forde,   Ganna Yudkivska,   Vincent A. De Gaetano,   André Potocki,   Aleš Pejchal, judges,   Johan Hirschfeldt, ad hoc judge, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 20 May 2014, delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 71398/12) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Libyan national, Mr M.E. (“the applicant”), on 3   November 2012. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2.     The applicant was represented by Mr S.-Å. Petersson, a refugee administrator, working in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms H. Lindquist, of the Ministry for Foreign Affairs. 3.     The applicant alleged, in particular, that his rights under Articles 3 and 8 of the Convention would be violated if he were expelled to Libya to apply for family reunion from there. 4.     On 12 December 2012 the acting President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be deported to Libya for the duration of the proceedings before the Court. 5.     On the same date, 12 December 2012, the application was communicated to the Government. 6.     Mrs Helena Jäderblom, the judge elected in respect of Sweden, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Chamber decided to appoint Mr Johan Hirschfeldt to sit as an ad hoc judge (Rule 29 § 1(b)). 7.     In addition to written observations by the applicant and the Government, third-party comments were received from Amnesty International and jointly from the International Federation for Human Rights (FIDH), the International Commission of Jurists and the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), whom the President had authorised to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1982 and is currently in Sweden. 9.     On 29 July 2010 he applied for asylum in Sweden, stating that he had entered the country three days earlier. He stated that the smuggler who had organised his journey had taken his passport and he provided a mobile telephone number for a contact person, N. 10.     On 6 August 2010, the Migration Board ( Migrationsverket ) held a first interview with the applicant during which he stated that he was from Libya. His mother and siblings remained there and he was in contact with them and would ask them to send him his passport and other identification documents. He further claimed that he had no relatives in Sweden but he provided the mobile telephone numbers of two contact persons in Sweden, N. and H. 11.     An in-depth interview was held with the applicant on 20 August 2010, where his public counsel and an interpreter were present. The Migration Board’s official informed the applicant of the importance of giving all his reasons for asylum as this might be his only chance to present them. She further assured him that all information provided was treated confidentially. The applicant handed in his identity card and claimed that the authorities had confiscated his passport and other identity documents. He then stated essentially the following. 12.     He had left Libya in April 2010 and had travelled to Tunisia, where he had remained until his uncle had helped him to reach Sweden in July 2010, with the assistance of smugglers and a fake French passport. In Libya he had been a soldier, working as a guard at a military base in Tripoli where he had met some persons who had paid him to transport illegal weapons for powerful clans from southern Libya, with connections to the authorities. He had been working for them for more than a year when, in November 2009, he had been stopped at a road check and interrogated. He had then been taken to an unknown location where he had been kept for about three weeks and subjected to interrogation and torture. He had been charged with possession of illegal weapons and car theft and had then been moved to a military prison where his uncle had visited him and arranged for a lawyer for him. During the torture, his arm had been seriously injured and become infected and, about two months after his transfer to the military prison, he had been taken to a civil hospital by two guards for treatment. After the doctor had treated him, one of his guards had gone to fetch coffee for him and the other had taken him outside for a cigarette. He had then managed to escape. If he were returned to Libya, he would risk at least ten years’ imprisonment for the criminal offences. He would further risk being killed by the clans since he had revealed their names under torture. He showed some scars on his arm, back and head. 13.     The Migration Board’s officer asked whether the applicant had other grounds for requesting asylum, to which the applicant replied no. He had lived well in Libya until he was arrested and had even planned to marry a woman in May 2010. 14.     In September 2010, the applicant’s public counsel submitted certain clarifications to the Migration Board but essentially maintained what had been stated during the interview. 15.     On 21 February 2011 the applicant visited the Migration Board together with N. He stated that he wished to add to his grounds for asylum that he was homosexual and had a relationship with N., whom he had known since his first week in Sweden. Their relationship had developed over time and he had moved in with N. in December 2010. N. was transsexual and had a permanent residence permit in Sweden. 16.     In view of this new information, the Migration Board held a supplementary interview with the applicant on 1 November 2011. During this interview, the applicant stated that he had been “normal” before and that it was N. he had become interested in. Their relationship had developed from friendship but it had been difficult because of the very negative attitudes from other Arabs in the city where they lived in Sweden. No one in Libya knew about his sexual orientation and he had never had a homosexual relationship in Libya. N. was in the process of changing gender from man to woman. They had spoken with his mother and sister over internet with a camera but N. had presented himself as a woman. They had married in September 2011. If he had to return to Libya to apply for family reunion from there, it would become known that he was married to a man and he would risk persecution and ill-treatment. 17.     As concerned his original grounds for asylum, and in view of the changes in Libya during 2011, the applicant noted that the situation in Libya was very insecure. He thought that the clans would no longer be particularly interested in him since they had other interests now and were less powerful than before. If he was careful, there would no longer be much of a threat against him in Libya. 18.     On 16 December 2011 the Migration Board rejected the application. It first noted that the applicant had failed to submit his passport despite having claimed on several occasions that he had a passport and would submit it. However, although he had not proved his identity, the Board accepted that he was probably from Libya. As concerned the situation in Libya following the overthrow of Gadhafi, the Board noted that it was serious but did not reach the level of internal armed conflict. Thus, an individual assessment had to be made in the applicant’s case. In this respect, the Board found that the applicant had given contradictory statements and that his story lacked credibility. To begin with, he had given diverging information about his passport at the interviews, first claiming that the smuggler had taken it, then that he could obtain it from his family, later that the Libyan authorities had confiscated it and, most recently, that he would submit the passport. It further observed that the name on the certificate relating to impediments to marriage, which the applicant had submitted in support of his marriage, was different from the name that he had given to the Migration Board. Since no passport had been submitted, it was not clear that the certificate concerned the applicant. In the same connection, the Board noted that the applicant had given contradictory statements about when he had met N. and their relationship. At the first interview, on 29 July 2010, he had given N.’s telephone number as a contact number, while in February 2011, he had stated that he had become acquainted with N. during his first week in Sweden and, at the interview in November 2011, he had claimed that he had met N. about three to four months after his arrival in Sweden. Moreover, at the in-depth interview, he had stated that he had no other grounds for his asylum application than those related to the weapon transport and that he had planned to marry in Libya. Against this background, the Board also questioned the nature of the applicant’s and N.’s relationship, as relied on before the Board only on 21 February 2011. Thus, the Board concluded that the applicant’s story, both in relation to events in Libya and his relationship with N., lacked credibility and was not sufficient to justify granting him a residence permit in Sweden. 19.     Furthermore, the Board noted that substantive changes had occurred in Libya after the applicant had left the country and considered that he had failed to substantiate that, on the basis of the criminal accusations against him, he would risk persecution by the authorities upon return or that the authorities would not be able to protect him against harassment by the clans. As concerned the applicant’s relationship to N., the Board referred to the main rule in the Aliens Act that an alien, who seeks a residence permit in Sweden on account of family ties or a serious relationship, must have applied for and been granted such a permit before entering the country. Whilst noting that an exemption from this rule can be made if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there, the Board considered that it would not be unreasonable to require the applicant to file such an application from Libya in accordance with the main rule. As there were no other grounds on which to grant the applicant leave to remain in Sweden, his application was rejected. 20.     The applicant appealed to the Migration Court ( Migrationsdomstolen ), maintaining his claims and adding that the spelling of his name differed in the various documents because the transcriptions from Arabic had been made by different persons. He had his passport but had been afraid to hand it over to the Migration Board for fear of being returned to Libya. His relationship with N. was serious; they were married and lived together. It would also become known in Libya that he was homosexual if he were to apply for a residence permit from there, which would expose him to a real risk of persecution and ill-treatment. Moreover, he would not be able to apply for a residence permit from Libya since Sweden had a consulate only in Benghazi. He submitted a copy of his passport, from which it appeared that he had been granted a Schengen visa by the Maltese Embassy in Tripoli in May 2010 and that he had entered Sweden on 15 June 2010. He also submitted a copy of a military card, copies of photographs of scars and two warrants for his arrest. 21.     During the oral hearing before the Migration Court, the applicant claimed that there was a threat against him from the Libyan authorities since he had worked for the military during the Gadhafi regime. Moreover, he added that it was not known in Libya that he was married to a man but he was certain that other Libyans in Sweden would spread that information to Libya, if he were to be sent there. In his view, it would also become known that he was homosexual if he had to apply for family reunion and be interviewed at the Swedish Consulate in Libya. He also presented his passport in original. 22.     On 13 September 2012 the Migration Court rejected the appeal. It first found that the general situation in Libya was not severe enough to grant the applicant asylum without there being individual reasons for asylum. Turning to the applicant’s individual reasons, the court noted that, since he had now submitted his passport, certain other documents provided could be linked to him. However, on examining these documents, the court found that the military card was for training and did not show that the applicant had later been employed by the military. The two warrants for arrest were of a simple character and easy to fabricate. Moreover, one of them did not contain any date and the applicant had not given any acceptable explanation of how he had obtained them. Turning to the photographs of the scars, the court considered that the fact that the applicant had had wounds which had left scars did not make probable that he would be ill-treated in the future. Thus, the court concluded that the documents did not show that the applicant was in need of international protection. Furthermore, the court found that the applicant was not credible, stressing that he had submitted his passport only at the oral hearing before the court and that he had deliberately given false statements before the Migration Board concerning his passport, how he had travelled to Sweden and the date of his arrival. He had also given contradictory statements concerning his knowledge of the possibilities of applying for asylum in Sweden and the alleged threats against him in Libya. Thus, the court did not believe the applicant’s asylum story. 23.     However, the court did not question that the applicant was homosexual but considered that he had failed to substantiate that there was a threat against him in Libya on account of this. In this connection, the court noted that, according to the applicant’s own statements, it was not known in Libya that he was homosexual. Moreover, it took the view that it was unlikely that Libyans in Sweden who knew about the applicant’s sexual orientation would be more willing to spread this information simply because the applicant was to return to Libya. The court also noted that the applicant had kept his passport in order to be able to return to Libya. In sum, it concluded that the applicant had failed to show that he would risk persecution or ill-treatment upon return to Libya. In so far as concerned his relationship with N., the court observed that all embassy personnel had an obligation to respect confidentiality and that there were no impediments for the applicant to apply for a residence permit from abroad. The fact that the Swedish Consulate was located in Benghazi did not alter this conclusion. 24.     One lay judge gave a dissenting opinion and considered that it could not be ruled out that information about the applicant’s sexual orientation might leak from an embassy. 25.     The applicant made a further appeal to the Migration Court of Appeal ( Migrationsöverdomstolen ) which, on 10 October 2012, refused leave to appeal. 26.     The applicant then requested the Migration Board to reconsider his case, submitting that a Libyan in Sweden, who knew about his marriage, had travelled to Libya and, by chance, had met his brother and told him that he was married to another man. His uncle had later called him and threatened to kill him if he returned to Libya since he had shamed the family. He further claimed that friends of his in Libya had told him that 12 homosexuals had been killed in Libya recently and that others had fled the country since they were being persecuted by unknown groups in Libya. He was convinced that he would face a real risk of being ill-treated or killed if returned and that it would not be possible for him to apply for family reunion from there without his sexual orientation becoming known. 27.     On 10 December 2012 the Migration Board rejected the request for reconsideration. It found that there was no reason to depart from the main rule that an application for family reunion had to be lodged from abroad. The applicant’s claim that his relatives had threatened him was not considered sufficient to constitute a permanent impediment to the enforcement of the expulsion order and thus there was no ground to reconsider the applicant’s case. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Aliens Act – Need for International Protection 28.     The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act ( Utlänningslagen , 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. 29.     Chapter 5, section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter   4, section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia , a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter   4, section 2, of the Aliens Act). 30.     Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in Sweden (Chapter 5, section 6, of the Aliens Act). During this assessment, special consideration should be given to, inter alia , the alien’s state of health. 31.     According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are r easonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter   12, section 2, of the Aliens Act). B.     The Aliens Act – Family Reunion 32.     Under Chapter 5, section 3, paragraph 1, point 1, of the Aliens Act, a residence permit shall, unless otherwise provided in sections 17 and 17b, be granted to an alien who is a spouse or cohabiting partner of someone who is resident or has been granted a residence permit to settle in Sweden. 33.     By virtue of Chapter 5, section 18, of the Act, an alien who wants a residence permit in Sweden on account of family ties or serious relationships must have applied for and been granted such a permit before entering the country. An application for a residence permit may not, as a general rule, be approved after entry. However, exemptions from this rule can be made, for example if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there (Chapter 5, section 18, second paragraph, point 5). As regards this exemption, the preparatory works to the provision (Government Bill 1999/2000:43, p. 55 et seq.) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there. Relevant elements, which may be favourable for the alien, may be whether he or she can be expected, after returning home, to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin. It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions. It may also be relevant whether the alien has to return to a country where there is no Swedish foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there. Relevant elements, which may count against the alien, may be that he or she is staying in the country illegally, that their identity is unclear or if there are strong ties to the country of origin. An exemption may also be made if there are some other exceptional grounds (Chapter 5, section 18, second paragraph, point 10). 34.     The requirement that, in principle, residence permits for family members have to be granted before entry into Sweden was introduced as one of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience. Subsequently, the Swedish Government and Parliament have underlined on several occasions that the requirement that residence permits be obtained before entry into Sweden is an important part of measures to maintain regulated immigration. Mo reover, the preparatory works to the Aliens Act state that it is important that aliens staying in Sweden illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there (Government Bill 1999/2000:43). 35.     The Migration Board recommends that all persons who wish to apply for a residence permit in Sweden on the basis of close relationships do so online, since that procedure is faster and simpler. It is also possible to apply for priority treatment at the time of submitting the application for a residence permit. C.     Legal Position by the Head of the Legal Department of the Migration Board relating to protection on the basis of sexual orientation 36.     On 13 January 2011 the Head of the Legal Department of the Migration Board issued a legal position concerning the method for investigating and considering the future risk for persons who rely on grounds for protection on the basis of sexual orientation ( Rättschefens rättsliga ställningstagande angående metod för utredning och prövning av den framåtsyftande risken för personer som åberopar skyddsskäl på grund av sexuell läggning ). This method reflects the test established by the United Kingdom Supreme Court in its judgment of 7 July 2010 in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31 (§ 82), namely: “When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living “discreetly”. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, eg, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention [United Nations Convention relating to the Status of Refugees 1951] does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention [United Nations Convention relating to the Status of Refugees 1951] exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.” 37.     The Head of the Legal Department concluded that the above test would be sufficient when considering the future risk of persecution both during the actual asylum examination and when considering whether there are impediments to the enforcement of an expulsion order. D.     Swedish Representations in Northern Africa 38.     According to the official Swedish Government site ( www.swedenabroad.com ), Sweden only has one representation in Libya which is the Consulate in Benghazi, but this is closed until further notice due to the volatile situation in the country. However, Sweden has embassies in Algiers, Algeria, and in Cairo, Egypt, as well as a consulate in Tunis, Tunisia, which are all open and deal with requests for residence permits in Sweden. E.     The Swedish Public Access to Information and Secrecy Act 39.     According to Chapter 21, section 5, of the Public Access to Information and Secrecy Act ( Offentlighets- och sekretesslag , 2009:400, hereafter “the Secrecy Act”), secrecy shall apply to information regarding an alien if it can be assumed that any person would be subjected to an attack or would otherwise be seriously harmed on account of the relationship between the alien and a foreign state or foreign authority, or an organisation of foreigners, should the information be disclosed. 40.     Moreover, Chapter 37, section 1, of the Secrecy Act stipulates that secrecy shall apply, in any activity for control of aliens and in any matter concerning Swedish citizenship, to information regarding an individual’s personal circumstances, unless it is evident that the information can be disclosed without the person concerned or any other person closely related to him or her being harmed. The Migration Board and the migration courts’ handling of cases concerning an alien’s right to asylum or residence permit in Sweden falls within the term “activity for control of aliens” in the Secrecy Act. It has also been clarified in the preparatory works to the Act (Government Bill 2003/04:93, pp. 84-85) that any assistance from the Swedish Embassies or Consulates abroad in the handling of cases concerning aliens’ right to asylum or residence permits in Sweden may not put any individual at risk or cause him or her any harm, for example in the form of harassment from a foreign state’s authorities. III. RELEVANT INFORMATION ON LIBYA A.     General country information 41.     The security situation in Libya remains volatile. In a Presidential Statement, dated 16 December 2013, the United Nations Security Council expressed grave concern at the worsening security situation and political division in Libya, which threatened to undermine the transition to democracy. The Security Council strongly condemned the killing of unarmed protestors in Tripoli on 15 November 2013 and emphasised that all parties had to reject violence against civilians. It further called for urgent progress towards an inclusive national approach to disarmament, demobilisation and reintegration into civilian life or integration into State military or security institutions. The Security Council also supported the efforts of the Libyan State forces to restore public security and counter violence by extremist groups. Moreover, it condemned cases of torture and mistreatment, and deaths by torture, in illegal detention centres in Libya. It emphasised that practices of torture and extrajudicial killing should not be tolerated and expressed its grave concern about the continued arbitrary detention, without access to due process, of thousands of persons held outside the authority of the State and reiterated its calls for their immediate release or transfer to detention centres under State authority. In this regard, the Security Council welcomed the recent transitional justice law promulgated by Libya’s General National Congress and encouraged its full implementation. Expressing its concern about all human rights violations and abuses, the Security Council called upon the Libyan authorities to investigate and bring to justice the perpetrators of all such acts, including those committed against children. 42.     Libyan nationals need a visa to enter Egypt but this can be obtained upon arrival in the country. Moreover, a visa is not required for Libyan nationals to travel to Algeria or Tunisia, as long as the stay does not exceed three months. B.     The situation in Libya for homosexuals 43.     All sex acts outside marriage are prohibited by the Libyan Penal Code, Articles 407 and 408, and punishable by a term of imprisonment of five years at most. Same-sex marriage or partnership is not legalised in Libya, making all homosexual acts illegal. It appears unclear, however, to what extent homosexual acts are prosecuted and punished as they can be difficult to prove. In an interview by the online newspaper Pink News, “Interview: Gays and the Libyan Revolution, before and after (part 1)”, published on 8 February 2012, a Libyan gay activist stated that he had never heard of publicly documented cases of men being charged under the Penal Code. Still, according to several sources (see, among others, the Swedish Migration Board, “Question – Answer: the situation of homo- and bisexual persons in Libya” [ Fråga-svar: homo- och bisexuellas situation i Libyen ], 30 September 2011, with further references, and Asylum Research Consultancy, commissioned by the UNHCR, “Libya Country report, dated 5 July 2013, Chapter 4.9), homosexuality is a taboo subject not only in public spaces but also within the private sphere, seen as an immoral activity against Islam and socially stigmatised. 44.     On 13 February 2012, UN Watch (“Libya tells UN Rights Council: ‘Gays threaten continuation of human race’”) reported that a United Nations delegate from Libya’s newly formed government had said during that day’s session of the UN Human Rights Council, while discussing violence based on sexual orientation, that “lesbian, gay, bisexual and transgender, or LGBT, topics affect religion and the continuation and reproduction of the human race.” It noted that the comment had made human rights activists question whether the new government would be more tolerant than its predecessor, under which homosexuals were subject to floggings and imprisonment. 45.     The United Kingdom Border and Immigration Agency, “Country of Origin Information Report on Libya”, dated 19 December 2012 (paragraphs 20.12 and 20.13, with further references), noted that during 2012 the Nawasi Brigade, Tripoli’s largest and most powerful militia brigade, allegedly arrested, assaulted and beat homosexuals simply for being homosexual. According to the report, one incident took place in November 2012 when the brigade arrested and detained 12 allegedly gay men who were at a private party, releasing them one week later with bruises on their backs and legs and shaved heads. It was also observed that the brigade officially works under the authority of the Ministry of Interior. IV.     OTHER RELEVANT INFORMATION A.     United Nations High Commissioner for Refugees (UNHCR) 46.     On 23 October 2012 the UNHCR issued its “Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees”. It starts from the premise that everyone is entitled to live in society as who they are and need not hide that (paragraph 12 of the Guidelines). Moreover, what amounts to persecution will depend on the circumstances of the case, including the age, gender, opinions, feelings and psychological make-up of the applicant (paragraph 16). Discrimination will amount to persecution where measures of discrimination, individually or cumulatively, lead to consequences of a substantially prejudicial nature for the person concerned. Assessing whether the cumulative effect of such discrimination rises to the level of persecution is to be undertaken by reference to reliable, relevant and up-to-date country of origin information (paragraph 17). 47.     The UNHCR further states that it is well established that laws which criminalise consensual same-sex relations are discriminatory and violate international human rights norms (paragraph 26). Even if irregularly, rarely or never enforced, criminal laws prohibiting same-sex relations could lead to an intolerable predicament for an LGBTI (lesbian, gay, bisexual, transgender and intersex) person, rising to the level of persecution. The existence of such laws can be used for blackmail and extortion purposes by the authorities or non-State actors. They can also promote political rhetoric that can expose LGBTI individuals to risks of persecutory harm. These laws can also hinder LGBTI persons from seeking and obtaining State protection (paragraph 27). The UNCHR also notes that where the country of origin information does not establish whether or not, or to what extent, the laws are actually enforced, a pervading and generalised climate of homophobia in the country of origin could be evidence that LGBTI persons are nevertheless being persecuted (paragraph 28). 48.     Furthermore, the UNCHR observes that even where consensual same-sex relations are not criminalised by specific provisions, laws of general application, for example, public morality or public order laws (such as loitering) may be selectively applied and enforced against LGBTI individuals in a discriminatory manner, making life intolerable for the claimant, and thus amounting to persecution (paragraph 29). 49.     The UNCHR also stresses that the fact that an applicant may be able to avoid persecution by concealing or by being “discreet” about his or her sexual orientation or gender identity, or has done so previously, is not a valid reason to deny refugee status (paragraph 31). Moreover, it underlines that even if applicants may so far have managed to avoid harm through concealment, their circumstances may change over time and secrecy may not be an option for the entirety of their lifetime. The risk of discovery may also not necessarily be confined to their own conduct since there is almost always the possibility of discovery against the person’s will, for example, by accident, rumours or growing suspicion (paragraph 32). B.     The Court of Justice of the European Union 50.     In a judgment of 7 November 2013 (joined cases C-199/12, C ‑ 200/12 and C-201/12, Minister voor Immigratie en Asiel v. X, Y and Z ) the Court of Justice of the European Union ruled that: “1. Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group. 2. Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution. 3. Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexuality.” C.     Criminal legislation in Algeria, Egypt and Tunisia 51.     The Algerian Penal Code (Ordinance 66-156 of June 8, 1966) Article 338 states: “Any person guilty of a homosexual act shall be punished with a term of imprisonment of between 2 months and two years, and with a fine of between 500 to 2,000 Algerian Dinars”. 52.     The Tunisian Penal Code of 1913 (as modified), Article 230, states in an unofficial translation: “Sodomy, which is not covered by any of the other previous articles, is punished with imprisonment for three years”. 53.     In Egypt, sexual relations between consenting adults of the same sex in private are not prohibited as such. However, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, “State Sponsored Homophobia, A world survey of laws: Criminalisation, protection and recognition of same-sex love” (8 th edition, May 2013), the Law on the Combating of Prostitution, and several articles of the Penal Code, have been applied to imprison gay men in recent years. For instance, the Penal Code, Article 278 states: “Whoever commits in public a scandalous act against shame shall be punished with detention for a period not exceeding one year or a fine not exceeding three hundred pounds.” Moreover, Law 10/1961 on the Combating of Prostitution, Article 9, states: “Punishment by imprisonment for a period of not less than three months and not exceeding three years and a fine not less than 25 LE and not exceeding 300 LE [...] or one of these two punishments applies in the following cases: (a) Whoever lets or offers in whatever fashion a residence or place run for the purpose of debauchery or prostitution, or for the purpose of housing one or more persons, if they are to his knowledge practising debauchery or prostitution. (b) Whoever owns or manages a furnished residence or furnished rooms or premises open to the public and who facilitates the practice of debauchery or prostitution, either by admitting persons so engaged or by allowing on his premises incitement to debauchery or prostitution. (c) Whoever habitually engages in debauchery or prostitution. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 54.     The applicant complained that, if he were forced to return to Libya to apply for family reunion from there, he would face a real risk of being persecuted and ill-treated primarily because he is homosexual but also due to previous problems with the authorities. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 55.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 56.     The applicant maintained that the implementation of the Swedish authorities’ decision to expel him to Libya would violate Article   3. 57.     Primarily, he relied on his homosexuality and claimed that he had friends in Libya, both homosexual and transsexual, and that they had had to be very careful since it was considered to be against Islam and Libyan culture to be homo- or transsexual. They had been persecuted and he had been arrested twice by the morality police. He and his friends had been beaten and robbed by people there. Moreover, he had met N. shortly after arriving in Sweden and they were now married. N. was transsexual and was undergoing treatment to become a woman. The applicant alleged that he had lived openly as homosexual in Sweden and that his sexual orientation and marriage to N. had become known to his family in Libya and that they had threatened to kill him because of that. He further claimed that his sexual orientation would in any event become known in Libya if he were to apply for a Swedish residence permit from there on the basis of his marriage. He did not believe that information would not be leaked from the Swedish Embassy and he would also have to contact Libyan authorities. Since homosexual acts were criminalised in Libya, he would be killed or severely punished. 58.     The applicant further maintained that he had been working for the military in Libya and had been arrested by the military authorities for smuggling illegal weapons in his car. He had not known about the weapons but he had been beaten and tortured in order to extract a confession from him. He had then been sent to a hospital from where he had managed to escape. With the help of his uncle and by paying bribes, he had obtained a visa to flee from Libya. Thus, for this reason also he would be at risk of ill ‑ treatment and arrest if returned to Libya. 59.     Lastly, the applicant stated that he agreed with the submissions of the third-party interveners and was convinced that he would be persecuted and ill-treated, contrary to Article 3 of the Convention, if forced to return to his home country. (b)     The Government 60.     The Government contended that the applicant’s expulsion to Libya, for a limited time, would not be in violation of Article 3 of the Convention. 61.     While they did not wish to underestimate the concerns that could legitimately be expressed with respect to the current security and human rights situation in Libya, including for LGBT persons, they considered that the situation was not such that there was a general need to protect all asylum seekers from the area. An individual assessment of the applicant’s situation had to be made. 62.     In the Government’s view, effective guarantees existed under the Aliens Act which protected the applicant against arbitrary refoulement , directly or indirectly, to his home country and had been applied by the Migration Board and the migration courts as they had made a thorough examination of the applicant’s case. The Government noted that the Migration Board had held several interviews with the applicant and the Migration Court had held an oral hearing. Moreover, the applicant had been represented by public counsel throughout the proceedings. Therefore, significant weight had to be given to the findings of the Swedish migration authorities, which were specialised bodies with particular expertise in this domain. 63.     As concerned the applicant specifically, the Government observed that he had altered, as well as escalated, his asylum account during the domestic proceedings. They entirely concurred with the reasoning of the Migration Board and Migration Court as concerned the applicant’s claims about involvement in illegal weapons transport and found these claims to be unsubstantiated. 64.     Turning to the applicant’s sexual orientation, the Government noted that he had only told the Migration Board that he was homosexual in February 2011 and h