CCPR/C/130/D/3246/2018
Facts as submitted by the author
2.1
The author has unsuccessfully applied for asylum in Sweden. During the asylum
procedure, he referred to his Hazara ethnicity, a conflict he had had with a man in the Islamic
Republic of Iran, the general security situation in Afghanistan and his conversion to
Christianity. The State party’s authorities rejected his application and a removal order entered
into force in August 2017. He was found in Austria in May 2018 and returned to Sweden,
where he was detained. Two attempts to remove him have failed owing to his health 2 and
“actions”.
2.2
Following his return to Sweden, the author contacted a lawyer and an organization
advocating the rights of lesbian, gay, bisexual, transgender and intersex persons. On 25 May
2018, he submitted an application that included information on impediments to the
enforcement of the removal order, specifically his sexual orientation, gender identity and
mental health. He had been afraid to invoke these circumstances earlier owing to the illtreatment he had suffered in the Islamic Republic of Iran relating to his sexual orientation. In
the application, he claimed that, according to information on his country of origin and owing
to his sexual orientation, he would be subjected to ill-treatment and persecution in
Afghanistan, which would justify the granting of international protection. Despite detailed
submissions on his experiences living as a homosexual in the Islamic Republic of Iran, a past
relationship with a boy there and his explanation of the timing of the submission, the Swedish
Migration Agency rejected the application on 28 June 2018. In appealing to the Migration
Court, the author stated that, after having had exchanges with an organization advocating on
behalf of lesbian, gay, bisexual, transgender and intersex asylum seekers, he had expanded
his thoughts about his gender identity and now identified as someone in between male and
female rather than as a man. He also provided pictures depicting him expressing himself in
gender non-conforming ways and details about his thoughts on his sexual orientation. On 20
July 2018, the Migration Court rejected the appeal, refusing to grant a new examination on
the ground that he had not made a credible claim, without however providing detailed reasons
for reaching that conclusion. The Migration Court of Appeal refused to grant leave to appeal
on 14 August 2018. No interview was granted to the author so that he could elaborate on the
circumstances invoked. The author has since become engaged to a man. 3 No new
examination has been carried out of this fact nor of the ill-treatment that he would face
because of the engagement between two people perceived as male.
Complaint
3.
The author submits that the State party has breached his rights under article 7 of the
Covenant by deciding to remove him to Afghanistan without examining his sexual orientation
and gender identity, despite detailed submissions including his thoughts on the matter and
information on his past relationship with a boy and on his experiences as a gay person in the
Islamic Republic of Iran, where he was at constant risk of grave punishment. He claims that
the decisions by the State party’s authorities are not detailed and do not identify any
inconsistencies in his account. He states that, according to information on his country of
origin, violence against lesbian, gay, bisexual, transgender and intersex persons in
2
3
2
The author does not explain what health conditions precluded his removal. He does submit a note by
his counsellor dated 16 July 2018, which mentions that it has emerged in his conversations with the
counsellor that his mental health has deteriorated during recent months, that he has a transgender
identity and that he is planning to commit suicide should he be removed. The note mentions that the
author has stated that he was given a particular name in church but that he identifies as the female
version of that name. It further mentions that he stated having previously had limited opportunities to
talk about his transgender identity and sexuality, as this is associated with shame, exclusion and risk
to one’s life. It moreover mentions that he was raped after a friend discovered his relationship with a
boy. The note states that, despite his detention, the author continues to explore his gender identity,
having dared to speak with activists for the rights of lesbian, gay, bisexual, transgender and intersex
persons about the female version of the name given to him by churchgoers. Finally, it states that
“there is not a great risk of suicide as of today but a greatly increased risk upon a decision of
deportation because of the patient’s transgender identity”.
The author submits pictures of what he states is the engagement, as well as selfies and other pictures
in which he wears religious clothing.