The issues that arise on this appeal are whether the Upper Tribunal in OO (Algeria)
wrongly equated persecution with a risk of being subjected to physical violence and
also failed to consider, cumulatively, the impact of the treatment that gay men would
face in Algeria. Further, the appeal raises the issues of whether it would be unduly
harsh to require the appellant to relocate within Algeria or whether returning him to
Algeria would amount to a disproportionate interference with his rights under Article
8 of the Convention given that he would conceal his sexual orientation if he returned
to live in Algeria.
The Court considered that criminalisation of homosexual acts was not sufficient to render return
contrary to the Convention. The Court found, however, that the Swiss authorities had failed to
adequately assess the risk of ill-treatment for the first applicant as a homosexual person in the
Gambia and the availability of State protection against ill-treatment from non-State actors. Several
independent authorities noted that the Gambian authorities were unwilling to provide protection
for LGBTI people.
