AS TO THE ADMISSIBILITY OF
by Zyna HALILOVA and Others
The European Court of Human Rights (Third Section), sitting on 13 October 2009 as a Chamber composed of:
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 18 April 2009,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having deliberated, decides as follows:
1. The first, second and third applicants, Mrs Zyna Halilova and her children Roza and Murad, are Kazakh nationals who were born in 1965, 1988 and 1990 respectively. The fourth applicant, Mr Fauzi Mama, is a Swedish national, born in 1960, and the common-law husband of the first applicant. The fifth applicant, Emil, is a Swedish national, born in 2007, and the son of the first and fourth applicants. They are all currently living together in Sweden and are represented before the Court by Mr M. Williams, a refugee counsellor in Västerås.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Proceedings before the Swedish authorities and courts
2. On 10 January 2005 the first, second and third applicants arrived in Sweden and, on 13 January 2005, they applied for asylum and residence permits. Before the Migration Board (Migrationsverket) they submitted essentially the following. They had no passports or any other identification documents. The first applicant had held a Soviet passport but the Kazakh authorities had refused to exchange it for a Kazakh passport because of her Kurdish ethnicity. In Kazakhstan they had been treated badly for many years because of the family’s ethnicity and both neighbours and others had harassed them so they had been afraid to leave their home. Moreover, their husband/father had been threatened and assaulted by police officers and, at the end of November 2004, he had been picked up by police and they had neither seen him nor heard of him since. In December 2004 the police officers had returned and had evicted them from their apartment and one month later they had left the country. The second applicant added that she had been bullied at school because she was Kurdish and she had therefore stopped attending school in September 2004. The third applicant also stated that he had been bullied by ethnic Kazakhs at school because of his ethnicity.
3. On 10 August 2005 the Migration Board rejected the application. It first noted that although they claimed to have been born in Kazakhstan and to have lived there all their lives the first, second and third applicants had alleged that they were not Kazakh nationals. The Board observed that after the break up of the Soviet Union in 1991, all those who had been residing in Kazakhstan for at least two to three years had obtained Kazakh nationality upon application. Children born in Kazakhstan of stateless parents but permanently residing in Kazakhstan were also given Kazakh nationality. Thus, the Board concluded that the applicants would be accepted in Kazakhstan as Kazakh nationals. It further considered that the alleged harassment seemed to have emanated from individual police officers who had acted outside their official role and could not be said to have been State-sanctioned. In this respect, the Board observed that ethnic Kazakhs were to a certain extent privileged compared to other ethnic groups but that the country had more than 100 different ethnicities and had generally been spared from inter-ethnic conflicts. Therefore, it found that the applicants had not shown that they would risk persecution if returned to Kazakhstan and, even having regard to the fact that the application involved two minors, it concluded that they were neither refugees nor otherwise in need of protection in Sweden.
4. The first, second and third applicants appealed to the Aliens Appeals Board (Utlänningsnämnden) maintaining their claims. However, on 4 October 2005, the Aliens Appeals Board upheld the Migration Board’s decision in full. As no appeal lay against the decision, the deportation order became final and the applicants were ordered to leave Sweden within two weeks.
5. On 27 April 2006 the Migration Board decided not to grant the first, second and third applicants leave to remain in Sweden on the basis of the temporary legislation in force at the time.
6. In August 2006 the first, second and third applicants lodged a request for reconsideration, maintaining that they could not return to their home country and adding that they now lived with the fourth applicant and were a family, for which reason it would be unfair to separate them.
7. On 27 August 2006 the Migration Board decided not to reconsider the case since no new circumstances of importance had been produced. As concerned the relationship to the fourth applicant, the Board stated that the first, second and third applicants could apply for residence permits on the basis of family ties from a Swedish Embassy in another country.
8. On 23 June 2008 the Migration Board decided to hand over the responsibility for the enforcement of the deportation order against the first, second and third applicants to the Police Authority. In its decision, it noted that they had no identification documents and that, although since September 2006 it had made repeated requests to the Kazakh Embassy for passports for these three applicants, it had received no reply at all from the Embassy. It further observed that a stay of execution of the deportation order had been in force between 25 February 2008 and 19 March 2008 because the first applicant had given birth to a son, the fifth applicant, on 24 September 2007. As the fourth applicant was a Swedish national, the fifth applicant had also obtained Swedish nationality.
9. The applicants then lodged a new request for reconsideration of their case, pointing out that the first applicant had married the fourth applicant and that the fifth applicant was still a baby, in need of both parents. Moreover, the fourth applicant suffered from Post Traumatic Stress Disorder (PTSD) and the current situation had had a very negative impact on him. The first applicant suffered from the situation and was in a fragile state and the baby was also reacting negatively to the situation. The second and third applicants considered Sweden to be their home as they had integrated well. They produced some medical certificates and an assurance that the first and fourth applicants were co-habiting.
10. On 28 September 2008 the Migration Board found that there were no impediments to the enforcement of the deportation orders against the first, second and third applicants and that there were no new grounds on which to grant them residence permits. In this respect, it observed that aliens who had been refused leave to remain were under an obligation to leave Sweden and that they could apply for Swedish residence permits on the basis of family ties from their home country.
11. The applicants appealed to the Migration Court (Migrationsdomstolen) maintaining their claims but, on 8 December 2008, the court dismissed the appeal as no appeal lay against the Migration Board’s decision.
12. In the meantime, on 25 November 2008 the Migration Board rejected another request from the first, second and third applicants to stop their deportation. They had essentially submitted that it would be inhuman to separate the family, in particular as the youngest son was only one year old and completely dependent on his mother’s presence. The Board, again, found that there were no new circumstances which constituted an impediment to the enforcement of the deportation order.
13. On 15 April 2009 the police entered the applicants’ home and detained the first and third applicants with a view to their deportation. The second applicant was not home at the time and thus was not apprehended. According to the applicants, the police officers were inconsiderate and used unnecessary force to separate the first and third applicants from the fourth and fifth applicants.
14. On the following day, the first applicant lodged a new application with the Migration Board. She submitted that she was in very poor mental health and taking medication to ease her stress, worry and physical symptoms, such as headaches and breathing difficulties. She had been in contact with the psychiatric emergency unit and her health care centre on several occasions. Moreover, the fifth applicant was completely dependent on his mother and he had reacted against their forced separation by not wanting to eat or sleep and having nightmares. If the first applicant were to be deported, the separation could be of a very long duration since she would first have to obtain a passport in order to be able to travel to the Swedish Embassy in Moscow to apply for a residence permit in Sweden on the basis of family ties. It would also be financially difficult for her to travel to Moscow. Furthermore, since the fourth applicant was suffering from PTSD and was even more unstable at the moment due to the situation and seeing a psychiatrist regularly, the first applicant worried about how he would be able to care for their son if she were absent for a long time. In this respect, she produced a medical certificate for the fifth applicant which stated that his psychological development and his connection to his mother would be negatively affected if he were separated from her. In any event, the first applicant asked the Board to stay the enforcement of her deportation order until the fourth and fifth applicants could obtain visas to travel with her to Kazakhstan.
15. On 17 April 2009 the Migration Board decided to stop the enforcement of the deportation order and to appoint a legal representative for the first applicant. However, on 20 April 2009, the Board rejected the application and ordered that the deportation be enforced. It first found that, although the first applicant had certain mental health problems, they were not so serious that they rendered an enforcement of the deportation order impossible or that she could be granted a residence permit on this ground. Having regard to all the circumstances of the case, including the fact that it would affect a child, the Board concluded that there were neither any impediments to the enforcement of the deportation order nor any grounds on which to grant the applicant leave to remain in Sweden. As concerned the question of stopping the deportation while the fourth and fifth applicants tried to obtain visas, the Board observed that this was for the Police Authority to decide.
16. The deportation of the first and third applicants was set for 21 April 2009.
2. Application of Rule 39 of the Rules of Court and further information in the case
17. On 18 April 2009 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of the first, second and third applicants’ deportation to Kazakhstan.
18. On 20 April 2009 the Court decided to apply Rule 39 and suspend the deportation until further notice in order to obtain some further information from the applicants. In particular, the applicants were asked about their social network and relatives in Kazakhstan and also to submit documents to show when the second and third applicants were born and their relationship to the first applicant since, before the Swedish authorities, it had been noted that the second applicant was born in October 1989 and the third applicant in March 1990.
19. Following the Court’s request, the Migration Board stayed the enforcement of the deportation order of the first, second and third applicants until further notice.
20. On 9 July 2009 the applicants submitted the results of DNA tests carried out on the first, second and third applicants by the National Board of Forensic Medicine (Rättsmedicinalverket). The results were dated 29 June 2009 and stated that the tests showed a 99.9% probability that the first applicant was the mother of the second and third applicants. However, the calculation presupposed that a close female relative of the first applicant was not the mother of the two children. The first applicant claimed that it was the Migration Board which had made a mistake when they arrived in Sweden and had noted that the second applicant was born in 1989 when in reality she was born in 1988. She had informed the Board about the mistake but it had not been corrected.
21. As concerned their social network and relatives the first, second and third applicants submitted that they had no relatives as the first applicant had been an only child and raised at an orphanage and the second and third applicants’ father, who had also been an only child, had disappeared in November 2004. They knew of no relatives on their father’s side. He had also been of Kurdish origin and he had worked while the first applicant had remained at home. Due to the problems encountered because of their ethnicity, they had had almost no acquaintances in Kazakhstan.
22. The applicants further submitted some medical certificates concerning the first, fourth and fifth applicants. According to these, the first applicant had suffered a serious crisis reaction due to her uncertain situation and the police intervention on 14 April 2009, which had caused her to be hospitalised for two days. She was in poor mental health but neither psychotic nor suicidal. The fourth applicant had suffered from PTSD and near-psychotic symptoms since the early 1990s when he had been imprisoned and tortured in Iraq. He had been seeing a psychiatrist for several years and, due to his poor mental health, he was not considered capable of caring for the fifth applicant alone. Therefore, it was considered necessary from a medical point of view that the first applicant be allowed to apply for a residence permit on the basis of family ties while remaining in Sweden. As concerned the fifth applicant, he was anxious, had nightmares, slept poorly and did not eat normally.
B. Relevant domestic law
23. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
24. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).
25. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6 of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit.
26. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).
27. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances presented by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been presented previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
28. Moreover, Chapter 5, Section 3, of the 2005 Act stipulates inter alia that a residence permit shall be granted to an alien who is the spouse or common-law spouse of someone who is residing in Sweden and to the alien’s children. However, according to Chapter 5, Section 18, of the 2005 Act, an alien who wants a residence permit in Sweden shall apply for it, and have received it, before entering the country. An application for a residence permit may not be granted after entry into Sweden except, among other grounds, if the alien has a very strong connection to a person residing in Sweden and it cannot reasonably be demanded that the alien travel to another country to hand in his/her application there.
29. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.
C. Other relevant information to the case
31. According to information from the Swedish Migration Board, it takes approximately six months from the date of lodging an application for a residence permit on the basis of family ties until a decision is made. Moreover, the person applying for a residence permit has to submit a number of documents and a valid passport.
32. Between 6 and 15 July 2009, the United Nations Independent Expert on minority issues, Ms. Gay J. McDougall, made an official visit to Kazakhstan. In her statement of preliminary findings, dated 15 July 2009, it was inter alia noted that there was a high degree of inter-ethnic and inter-religious cooperation and tolerance in Kazakhstan which was evident in the society. The country had approximately 130 different ethnic groups and initiatives taken by the government in the field of minority issues had helped to ensure stability, respect for diversity and a positive sense of nationality. Members of minority communities with whom the Independent Expert had met, had commonly described an environment of relative equality and non-discrimination in such areas as private-sector employment, access to services and general societal interactions. However, they had also expressed their frustration at their lack of meaningful participation in political life and in decision-making on issues that affected them. Moreover, while non-discrimination provisions existed in both the Constitution and in various laws, no cases challenging discriminatory actions on the ground of ethnicity had come before the courts. The Independent Expert was concerned that this absence of cases might be evidence of inadequate legislative framework, a lack of independent and effective mechanisms for individuals to make complaints and a lack of public confidence in the process.
33. The first, second and third applicants complain under Article 3 of the Convention that, if deported from Sweden to Kazakhstan, they would be persecuted and discriminated against because they are of Kurdish ethnicity. Moreover, the applicants claim that their right to their family life would be violated if the deportation order were enforced as the family would be separated for an unknown period of time. Such a separation would be inhuman, and lead to irreparable damage, in particular for the fifth applicant since it would entail a prolonged separation from his mother at a very young age. Lastly, the first applicant alleges that, while in detention in April 2009, she was treated in an inhuman and degrading manner, contrary to Article 3 of the Convention.
34. The first, second and third applicants allege that if they are deported to their home country they will be subjected to treatment contrary to Article 3 of the Convention which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
35. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3 and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008 ...).
36. In the present case, the first, second and third applicants have claimed that they would be persecuted, ill-treated and discriminated against if forced to return to Kazakhstan because of their Kurdish ethnicity.
37. The Court does not question that the first, second and third applicants, while living in Kazakhstan, may have experienced some harassment and felt badly treated by certain persons at school and in the streets. However, the Court observes that there is no State-sanctioned discrimination against ethnic minorities and that it appears from the statement of the UN Independent Expert on minority issues that Kazakhstan has a high degree of inter-ethnic cooperation and tolerance. In so far as the first, second and third applicants allege that police were responsible for their husband/father’s disappearance and for their being evicted, this has not been substantiated. Moreover, they have submitted no evidence that they reported or complained about these, or any other, events to the Kazakh authorities and, consequently, that the authorities would be unwilling or unable to help or protect them. In any event, the Court considers that the first, second and third applicants have not shown that, if deported, they would face a real risk of being subjected to treatment contrary to Article 3 of the Convention in Kazakhstan, noting that the ill-treatment has to reach a certain degree of severity to fall within the ambit of Article 3.
38. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
39. As concerns the first applicant’s allegation, under Article 3 of the Convention, of having been treated in an inhuman and degrading manner while detained in April 2009, the Court observes that she has not lodged a formal complaint in Sweden concerning this matter. It follows that she has failed to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention and, consequently, the complaint must be rejected pursuant to Article 35 § 4 of the Convention.
40. The applicants further claim that a separation of the first applicant from the fifth applicant would be inhuman and cause him irreparable damage due to his very young age.
The Court considers that this complaint may fall within the ambit of Article 3 of the Convention and that it cannot, on the basis of the case file, determine the admissibility of this complaint. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
41. Lastly, the applicants complain that an enforcement of the deportation order would lead to a breach of their family life as they would be separated for a long time. This complaint falls under Article 8 which, in relevant parts, reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, ... or the economic well-being of the country, ....”
42. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints concerning family separation under Articles 3 and 8 of the Convention;
Declares the remainder of the application inadmissible.
Santiago Quesada Josep Casadevall