Following a brief summary of the case (I), we will explore the evolution of SOGI claims in international refugee law (‘IRL’) (II) by tracing doctrinal and case law developments and drawing on queer and feminist theory. We will then analyse the Court’s key findings on the discretion requirement and their implications for RSD and human rights protections in Switzerland, Europe, and beyond (III).

I. Facts and internal Swiss asylum procedure

The case concerns an Iranian man, M.I., who sought asylum in Switzerland due to fear of persecution in Iran on account of his sexual orientation.

M.I. met his boyfriend during military service, and in July 2017, they decided to disclose their otherwise secret relationship to their close friends. Several months later, one of the people who knew of their relationship sent a photo of the couple to M.I.'s brother. Soon after, two of his brothers and his father confronted him and accused him of bringing dishonour to the family. Fearing persecution, M.I. fled to Turkey where he registered with the United Nations High Commissioner for Refugees (UNHCR), stating that his homosexuality was the reason he had had to leave Iran.

In March 2019, M.I. applied for asylum in Switzerland. Both the State Secretariat for Migration (SEM) and, subsequently, the Federal Administrative Court (FAC) rejected his application, citing credibility concerns and inconsistencies regarding his claims of past persecution by his family. The FAC also reasoned that, since he had always concealed his sexual orientation and lived discreetly, he faced no real risk of future persecution or ill-treatment in Iran. Furthermore, while acknowledging that homosexuality is criminalised under Iranian law and punishable by death, the FAC concluded that homosexual men were not generally subject to systematic persecution, and the risk of serious harm was low, as arrests rarely resulted in convictions.

Ultimately, the FAC confirmed that living ‘discreetly’, hiding his sexual orientation, would not cause M.I. intolerable psychological harm or lead to his discovery. Consequently, the FAC concluded that he faced no real risk of persecution if he returned to Iran and continued to keep his private life concealed.

On 22 November 2021, M.I. filed an application to the European Court of Human Rights (hereinafter ‘the Court’), alleging a violation of Articles 2 (right to life), 3 (freedom from torture and ill-treatment), 13 (right to effective remedies) and 14 (right to non-discrimination) in conjunction with article 8 (rights to private and family life) of the European Convention on Human Rights (ECHR). Interim Measures under rule 39 of the Rules of the Court were granted because of the imminent and irreparable risk of harm if returned to Iran.

After considering submissions from the applicant and the Swiss government, along with observations from the United Nations High Commissioner for Refugees (UNHCR), Stonewall, and African Rainbow Family (UK-based NGOs), and after reviewing relevant international materials and country reports, the Court found that Switzerland had violated its obligations under Article 3 of the ECHR.

The Court noted that, unlike in other cases involving asylum claims based on sexual orientation[2], the State did not dispute the applicant’s homosexuality. Nor was there any disagreement between the parties on the principle that sexual orientation is a fundamental aspect of an individual’s identity or on the fact that homosexuals in Iran face risks from both State and non-State actors.

Relying on the UNHCR 2012 Guidelines on Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity[3], the Court found that M.I.’s sexual orientation could be discovered upon return, contradicting Swiss authorities. It reaffirmed that the key issue under Article 3 is not the existence of criminal laws but the real risk of enforcement, as confirmed by country reports[4].

In the end, what was decisive for the Court was not M.I.’s claims of past persecution[5] but rather the risk of future harm, namely from individuals beyond his family, and the State’s unwillingness to provide effective protection. The discretion requirement was firmly rejected. The applicant’s claims under Articles 2, 13 and 14 were not examined. The Court considered that it was unnecessary to rule separately considering its findings under Article 3.

II. Evolution of sexual orientation and gender identity in refugee claims

Understanding the significance of M.I. v. Switzerland requires placing it within the broader evolution of SOGI refugee claims.

Designed to protect political dissidents and minority groups, the 1951 Refugee Convention omitted SOGI minorities, forcing them to seek asylum under the ‘particular social group’ (PSG) category[6]. The first country to accept sexual orientation as a ground for asylum, under the member of a PSG category, was the Netherlands in 1981[7]. Other countries shyly followed suit only over a decade later[8]. Clear recognition of SOGI-based protection under the Refugee Convention did not emerge until the 2000s[9], heavily influenced by the UNHCR’s guidelines on SOGI claims[10],  followed by the European Union Council Directive on minimum standards of 2004[11]. The UNHCR SOGI Guidelines N°1 introduced the notion that states must ensure a “gender-sensitive application of refugee law and procedures”[12], which some states have attempted to integrate into their national policy.

One of the key blind spots in SOGI RSD, as identified by experts and scholars, arises from the early classification of such claims under the PSG category[13]. This limited categorisation has resulted in the underestimation of SOGI-based claims under other protected grounds, and an “enduring Catch 22 in terms of the group analysis and risk assessment and nexus”[14]. Social perceptions of how a person should have manifested their sexual orientation (‘SO’) or gender identity (‘GI’) quickly became the norm, and thus began the notion that applicants who hid their SOGI out of fear were seen in RSD as acting ‘discreetly’ and thus not at risk now or in the future[15]. According to Millbank, States and societies implicitly expect gay people to conceal, conform, and avoid challenging heterosexual norms and institutions, deeply shaping RSD. The near-exclusive use of the PSG category has reinforced this by defining the ‘group’ and its role in public space and civil society[16].

Despite significant progress – driven by the unwavering efforts of human rights and LGBTIQ* organisations in exposing SOGI-specific abuses and discrimination, alongside key literature and policy developments – major obstacles persist in practice. These challenges stem from the misapplication and misunderstanding of SOGI claims, often rooted in biases, stereotypes about SOGI identity and expression, heteronormative and binary standards, and the imposition of Western lesbian and gay norms on diverse cultural contexts[17]. Indeed, in cases where international protection is sought on SOGI grounds, the assessment of the applicant’s SOGI status is fundamentally a matter of credibility or a requirement to conceal their identity[18]. Recognising SOGI claimants' specific needs, shared experiences, and differences, as highlighted in queer literature, is essential for ensuring adequate protection[19].

While the data is still scarce, it is apparent that SOGI claimants have far lower success rates than average in most European countries[20]. These high failure rates have largely been attributed to the discretion-based reasoning[21]. The next chapter will discuss this rationale and explore how M.I. v. Switzerland addresses and confronts it.

III. Doing away with the discretion requirement?

While in M.I. v. Switzerland the Court does not use the terms “discretion” or “discreet”, it does state plainly that it “cannot agree with the Swiss authorities’ assessment that it is unlikely that the applicant’s sexual orientation would come to the knowledge of the Iranian authorities or population”[22].

Fundamentally, the Court refocused the issue and reaffirmed the correct legal test: the assessment should not hinge on the applicant’s future behaviour, nor on their past behaviour or the credibility of past events. Instead, the Swiss authorities should have determined whether the applicant, as someone at risk of persecution or harm – whether from state or non-state actors – could seek and receive effective protection from the State[23]. Simply put, what were they thinking asking a gay man to be discreet in Iran?

This is a significant clarification, highlighting the stark gap between refugee law and practice, most evident in the persistent use of ‘discretion’ reasoning[24]. It also confirms (for now) the Court’s shift, correcting its flawed ME v. Sweden stance, which upheld returning SOGI claimants and confining SOGI to private life[25].

Before this ruling, courts and policymakers had increasingly moved away from discretion reasoning, becoming more receptive to queer and feminist theory in IRL to advance SOGI minorities' equal rights[26]. The highest courts in the United Kingdom, Australia and Italy have clearly ruled that discretion-based reasoning must not be used[27], as it is “wrong in principle, unworkable and inconsistent”[28] and “would undermine the object of the Convention if the signatory countries required them to modify their beliefs or to hide”[29].

Despite M.I. v. Switzerland, domestic courts, including Switzerland’s, still argue that ‘core rights’ are not violated by so-called ‘reasonable’ behavioural modifications[30]. This judicial inconsistency underscores the case’s importance. Switzerland's SOGI asylum policy forbade denying claims based on concealment, yet authorities still applied this standard to M.I.[31].

If we were inclined to praise the ECtHR’s decision further, we might even argue that this rejection of the discretion requirement shows receptiveness to, or at least the influence of intersectional feminist, queer, and non-western perspectives in IRL and IHRL. Heimar has argued that the discretion reasoning reflects “orientalist discourses allowing for racialised sexual others to be problematically portrayed as ‘discreet’ as opposed to Western liberated queers”[32]. Removing this requirement from RSD addresses some concerns raised by such critiques.

Finally, as the discretion requirement and the emphasis on future behaviour create obstacles across various RSD claims – including those based on political opinion, religion, and other particular social groups[33] – M.I. v. Switzerland has the potential to set a broader precedent.

IV. Conclusion

M.I. v. Switzerland is a key step in eliminating discretion-based reasoning in SOGI asylum claims, affirming that concealment cannot be a condition for safety. While the ruling strengthens human rights prote3ctions, judicial inconsistencies persist, as seen in Switzerland’s handling of the case. Its broader impact will depend on whether states align their asylum policies and decision-making with its principles, especially considering the backsliding on LGBTIQ* rights in many parts of the world.

This decision also reflects a growing recognition of queer and feminist perspectives in refugee law, challenging entrenched biases. However, sustained advocacy is needed to ensure that discretion reasoning is fully abandoned and that SOGI claimants receive protection based on genuine risk, not expectations of concealment.

[1] Emma Lidén is a human rights lawyer practicing at the Geneva-based law firm Peter & Moreau, where she is part of the international human rights legal team.

[2] Citing a decision of the European Court of Human Rights of 19 December 2017, I.K. v. Switzerland (Application no. 21417/17); a decision of the European Court of Human Rights of 19 April 2016, A.N. v. France (Application no. 12956/15); and a judgement of the European Court of Human Rights of 17 November 2020, B and C v. Switzerland (Application nos. 889/19 and 43987/16).

[3] 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” (HCR/GIP/12/09).

[4] B and C v. Switzerland (n2), § 59.

[5] The Court specified “The Swiss authorities dismissed the applicant’s claim of persecution by his family members as not credible. The Court see no reason to depart from the assessment, as the national authorities are better placed to assess the credibility of an individual […]. The question of past ill-treatment as an indication of real risk of future ill-treatment therefore does not arise” (M.I. v. Switzerland, § 53).

[6] Satvinder Juss, ‘Recognising Transnational Refugee Law’ (2019) TLI Think! Paper 14/2018; Article 1(A)(2) of the 1951 Refugee Convention.

[7] Jenni Millbank, ‘Sexual Orientation and Gender Identity in Refugee Claims’ in Cathryn Costello, Michelle Foster, Jane McAdam (eds) The Oxford Handbook of International Law (OUP 2021) 762.

[8] Namely Canada, Australia, United Kingdom. See Millbank (n7) 762.

[9] See for example: Hernandez-Montiel v INS, 225 F 3d I084 (9th Cir, 2000); HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31, [2011] 1 AC 596.

[10] The first of which was published in May 2002: UNHCR, ‘Guidelines on International Protection No 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/01 (7 May 2002).

[11] 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. The 2004 Directive only mentioned Sexual Orientation claims. Gender identity was included in the Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

[12] UNHCR Guidelines (n10) § 38.

[13] Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (OUP 3rd ed) 78, 82.

[14] Millbank (n7) 764; Nuno Ferreira, Carmello Danisi, ‘Queering International Refugee Law’ in Cathryn Costello, Michelle Foster, Jane McAdam (eds) The Oxford Handbook of International Law (OUP 2021) 83.

[15] Millbank (n7) 765.

[16] Ibid, 765.

[17] UNHCR, ‘Beyond Proof, Credibility Assessment in EU Asylum Systems’ (2013) 71; Stefan Vogler, ‘Legally Queer: the Construction of Sexuality in LGBQ Asylum Claims’ (2016) 50 Law & Society Review 856, 883; David AB Murray, ‘Real Queer: “Authentic” LGBT Refugee Claimants and Homonationalism in the Canadian Refugee System’ (2014) 56 Anthropologica 21, 23.

[18] UNHCR, ‘Beyond Proof’ (n17) 71; Ferreira and Danisi (n14) 83.

[19] Ferreira and Danisi (n14) 92.

[20] Millbank (n7) 764.

[21] Jenni Millbank, ‘From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom’ (2009) 13 International Journal of Human Rights 391; International Detention Coalition, ‘LGBTI Persons in Immigration Detention, Position Paper’ (2016).

[22] M.I. v. Switzerland, §50.

[23] Ibid, §§50-57.

[24] Millbank (n7) 767.

[25] Judgement of the European Court of Human Rights of 8 April 2015, ME v. Sweden (Application no. 71398/12).

[26] Ferreira and Danisi (n14) 87.

[27] Millbank (n7) 768.

[28] HJ (Iran) v. Secretary of State for the Home Department [2009] EWCA Civ 172, [2009] Imm AR 600, para 32.

[29] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, paras 41, 53.

[30] Millbank (n7) 767.

[31] Manuel asile et retour, Article D2.1, p.9.

[32] Rosa dos Ventos Lopes Heimer, ‘Homonationalist/Orientalist Negotiations : The UK Approach to Queer Asylum Claims’ (2020) 24 Sexuality & Culture 174, 184.

[33] Jana Weßes, ‘The Art of Drawing Lines: Future Behaviour and Refugee Status’ in Satvinder Juss (ed), The Research Handbook on International Refugee Law (Edward Elgar 2019) 275.

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