EGMR

[...]

56. The available reports indicate a considerable improvement in the human rights situation in the Gambia following the change of government in late 2016 and early 2017. The Court considers that the general human rights situation is not such as to prevent the deportation of any Gambian national per se. Hence, it must assess whether the first applicant’s personal circumstances are such that he would face a real risk of treatment contrary to Article 3 of the Convention if he were deported to the Gambia.

57. It is not disputed between the parties that the first applicant is homosexual. They also agree that a person’s sexual orientation forms 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 I.K. v. Switzerland, cited above, § 24). Against this background and irrespective of whether or not the first applicant’s sexual orientation was at present known to the Gambian authorities or population, the Court considers it may subsequently be discovered if he were removed there (see also paragraph 36 above, at § 32). [...] The Court disagrees with the domestic authorities’ assessment that the first applicant’s sexual orientation would presumably not come to the attention of the Gambian authorities or population (see paragraph 30 above). [...]

59. In so far as the applicant alleges a risk of ill-treatment at the hands of the authorities, the Court observes that homosexual acts remain criminalised in Gambian legislation and carry severe prison sentences. Reports – and the parties’ submissions – indicate that prosecutions of LGTBI persons based on these laws no longer occur under President Barrow. The Court takes the view, consistent with I.I.N. v. the Netherlands (cited above) and the case-law of the CJEU (see paragraph 35 above), that the mere existence of laws criminalising homosexual acts in the country of destination does not render an individual’s removal to that country contrary to Article 3 of the Convention. What is decisive is whether there is a real risk that these laws are applied in practice, which is reported not to be the case in the Gambia at present. Persecution relating to sexual orientation and gender identity by State actors may also take the form of individual acts of “rogue" officers (see paragraph 36 above, at § 34). While no such acts are reported in the recent country reports on the Gambia, the United Kingdom Home Office indicated that this may be due to under-reporting (see paragraph 39 above, at 5.3.1) and that LGBTI persons openly expressing their sexual orientation and/or gender identity are likely to face discrimination from State actors (ibid., at 2.4.11 and 2.4.12). [...]

61. Yet, ill-treatment may also emanate from non-State actors other than family members (see paragraph 36 above, at § 35). Reports indicate widespread homophobia and discrimination against LGBTI persons following years of hatred stirred up by the former President Jammeh (see paragraph 39 above, at 2.4 and 6). The third-party interveners submitted that such dangers had in fact increased following the change of government (see paragraph 53 above).

62. A related question is whether the Gambian authorities would be able and willing to provide the necessary protection to the first applicant against ill-treatment on grounds of his sexual orientation emanating from non-State actors. The availability of such State protection had to be established by the Swiss authorities proprio motu (see J.K. and Others v. Sweden, cited above, § 98). However, having taken the view that it was not likely that his sexual orientation would come to the attention of the Gambian authorities or population – an assessment with which the Court disagrees – and that he did thus not face a real risk of ill-treatment, the domestic authorities did not engage in an assessment on the availability of State protection against harm emanating from non-State actors. The parties disagree as to whether the Gambian authorities would be able and willing to provide effective protection to the first applicant against ill-treatment emanating from non-State actors, with the third-party interveners concurring with the applicant. The United Kingdom Home Office documents indicate that the Gambian authorities were generally unwilling to provide protection to LGBTI persons 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 acts in the Gambia (see paragraph 39 above, at 2.5). Similarly, UNHCR has been of the view that laws criminalising same-sex relations were normally a sign that State protection of LGBTI individuals was not available (see paragraph 36 above, at § 36). [...]