New hope for asylum in Switzerland

Thanks to the European Court of Human Rights, Kian Azad*, a gay Iranian man supported by Queeramnesty International, still has a chance of receiving asylum in Switzerland. At the end of 2024, the court ruled against the Swiss authorities' rejection of his asylum application. We spoke with Kian and his lawyer, Stephanie Motz.

Text: Corin Schäfli

Kian Azad (34) grew up in a small Iranian village in an ultra-religious family. When they learned through indirect channels that he was gay, they began threatening him. He initially fled to Turkey with his then-boyfriend. However, their relationship ended there. Kian traveled alone to Serbia, where he lived in an asylum center for some time. Smugglers then transported him further in a truck. Almost by chance, he ended up in Switzerland, where he officially applied for asylum. That was about six years ago. His asylum process proved to be lengthy and difficult. Ultimately, Switzerland rejected his application – arguing that he would be safe in Iran as long as he lived his sexuality "discreetly." His lawyers successfully appealed this decision to the European Court of Human Rights (ECHR) in Strasbourg.

The best years of his life were lost

The verdict in November 2024 brought Kian both joy and sorrow. "It feels as if I've lost the best years of my life," he said in an interview with the "Tages-Anzeiger" shortly after the court decision. "The last few years as a recipient of emergency assistance were marked by fear, stress, and uncertainty."

And then came this message from Strasbourg – as if I were being brought back to life.” He currently lives in Ticino and has lost contact with his relatives in Iran. He is still waiting for a decision from the Swiss authorities. A request for revision of the ECHR ruling is currently pending before the Federal Administrative Court. Until then, Kian’s situation remains uncertain. “Although I live here, I don’t really exist. I’m not allowed to work.” He taught himself Italian. All he wants is a normal life and an end to the uncertainty.

Resentment and psychological support

Queeramnesty has been supporting Kian in his asylum process since 2021. "Through this, I've found a connection here in the queer community," he says. "I've also received emotional and psychological support. I've been given counseling, access to self-help groups, and I've learned about safe spaces for queer refugees." This has allowed him to participate in Pride and other queer events. "As soon as I have my residence permit, I want to become more involved in supporting other queer asylum seekers." But even the exchange so far has been helpful. "The emotional strain when an asylum procedure drags on is enormous. Many feel isolated and uncertain about their future."

Kian tries to offer moral support to others and share all the useful information he has gathered through his own experiences. "And I encourage them to contact organizations like Queeramnesty, which can offer valuable guidance and legal advice."

Difficulties of the asylum procedure

From Kian's perspective, there are several typical problems for queer refugees in the Swiss asylum system. "The officials who process these asylum applications lack knowledge and awareness. They are not conscious of the specific challenges that queer people face in their countries of origin. This can lead to the rejection of asylum applications." Furthermore, queer asylum seekers are often expected to prove their sexual orientation or gender identity. "This can be extremely difficult, especially if they were forced to conceal this in their home country." Added to this is the psychological strain: "It happens repeatedly that queer asylum seekers in refugee shelters are subjected to harassment, threats, and violence. At the same time, the lengthy asylum procedures lead to great uncertainty, sometimes even depression, anxiety, or even suicide attempts. This makes the support provided by Queeramnesty all the more important."

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"No one can hide their sexual orientation permanently without eventually being found out."

Lawyer Stephanie Motz won the case for Kian* before the European Court of Human Rights. She explains why this ruling goes a significant step further than previous decisions.

Text: Klaus Lerch

Ms. Motz, you represented Kian before the ECHR. At what point in the asylum proceedings were you involved?

The national proceedings were already being handled by competent legal representation in Switzerland. I was only brought in after the Federal Administrative Court had rejected the asylum application as a final ruling, leaving the question: What now? Since I specialize in international litigation – including in asylum matters – I was contacted.

Would it even be possible to appeal to the ECtHR without legal representation?

Theoretically, yes – but in practice, laypersons often fail due to the formal hurdles. The Strasbourg court sets strict requirements for complaints, so many lay submissions consisting of just one or two sentences are declared inadmissible without any substantive review. In a case like Kian's, the language barrier is an additional factor, making a complaint virtually impossible without professional assistance.

Foto: Goran Basic

The European Court of Human Rights ruled that the specific threat to Kian had not been sufficiently assessed. Were there any other arguments against the deportation?

Our main argument was clear: Kian faced arrest, torture, and possibly death in Iran—unless he concealed his sexual orientation. This is the so-called "discretion argument." But that cannot be the deciding factor in asylum proceedings. Furthermore, there was the clear aspect of discrimination: Heterosexuals in Iran can marry, live openly together, and plan a future, while homosexuals must remain invisible in order to survive.

There was already a similar ECHR ruling in 2020 in the case of "B and C vs. Switzerland". Shouldn't Switzerland have changed its asylum law based on that?

Exactly, the discretion argument has actually been rejected several times by the European Court of Human Rights. Nevertheless, Switzerland felt that if someone like Kian had already lived discreetly in Iran for some time out of fear of persecution, the same could be expected of him if he returned.

"The ruling states not only that the discretion argument is legally inadmissible, but also that discretion can offer practically no protection against persecution."

Does the ruling therefore merely reflect a common practice of the court, or does it contain something groundbreakingly new?

In its ruling, the European Court of Human Rights goes a crucial step further than before: it not only states that the argument of discretion is legally inadmissible, but also that discretion can offer practically no protection against persecution. No one can reliably conceal their sexual orientation indefinitely without eventually being discovered – and therein lies the danger.

Will this ruling also have an impact on future asylum procedures in Switzerland or other countries?

For Switzerland, this ruling is an important wake-up call – the discretion argument has unfortunately been repeatedly invoked by the State Secretariat for Migration (SEM) and the Federal Administrative Court. Other countries have long since adapted their asylum practices. However, the ruling is also attracting international attention, indicating that it is likely to have an impact beyond Switzerland.

"Switzerland generally complies consistently with ECHR rulings and has accepted this ruling without complaint."

It seems that some countries – including Switzerland to some extent – have recently become less concerned with ECHR rulings. Do you also perceive this, and what can the Court do about it?

I can't confirm that. Switzerland generally follows ECHR rulings consistently and accepted this ruling without complaint. Of course, the Federal Council's reaction to the climate senior citizens' ruling leaves a bad taste in the mouth. But it's worth looking at history: In the 1980s, after the Bellilos ruling, Switzerland faced... Shortly before withdrawing from the ECHR – today we owe better legal protection in criminal proceedings to this decision.

Back to Kian: Despite the ECHR ruling, he still doesn't have final asylum status – the Swiss authorities are reportedly still analyzing the ECHR ruling. Could it be that he will still be deported?

Given the current situation in Iran, I consider that completely unrealistic. The European Court of Human Rights has made it clear that discretion is neither a legal nor a practical option. As a gay man, Kian has no chance of a safe life in Iran.