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Cite as: [2010] ECHR 1718

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THIRD SECTION

DECISION

Application no. 24682/09
by E.S.M. and Others
against Sweden

The European Court of Human Rights (Third Section), sitting on 5 October 2010 as a Committee composed of:

Boštjan M. Zupančič, President,
Elisabet Fura,
Ineta Ziemele, judges,
and Santiago Quesada , Registrar,

Having regard to the above application lodged on 12 May 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:

THE FACTS

The first applicant is a Libyan national who was born in 1967. The second applicant is a Moroccan national, born in 1973, and the wife of the first applicant. The third applicant is a Moroccan national, born in 2008, and the daughter of the first and the second applicants. The applicants are currently living in Sweden. They are represented before the Court by Mr Marcus Sandström, a lawyer practising in Umeå. The Swedish Government (“the Government”) are represented by their Agent, Mr B. Sjöberg of the Ministry for Foreign Affairs.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Proceedings before the Swedish authorities

The first and the second applicants arrived in Sweden on 20 October 2003. They sought asylum, refugee status and travel documents.

In the proceedings before the immigration authorities, the first applicant submitted that if he were to return to Libya he would be detained and tortured because he had been actively involved in a small political group with critical views on the current Libyan regime.

The second applicant submitted, for her part, that she would be in danger in Morocco as she had witnessed the killing of her sister by the sister's husband. She had reported the incident and the man had been sentenced to 30 years' imprisonment. The man and his family had been threatening the second applicant and her family in Morocco ever since.

The applicants had married in 2002 and settled in Libya. They had left that country because of the first applicant's problems with the authorities.

On 18 November 2004 the Migration Board rejected the applicants' claims and ordered their removal to either Libya or Morocco. In its reasoning the Board noted, inter alia, that the general situation in Libya had improved in recent years. In its view, failed asylum seekers were at no particular risk upon their return to Libya. The general situation in Morocco did not give reason for alarm either. The Board considered that both applicants had exaggerated the possible risk to their health or lives if returned to Libya or Morocco.

The applicants appealed against that decision. On 27 February 2006 the Aliens Appeals Board dismissed the appeal. It noted, inter alia, that it would be difficult for persons suspected of political offences to leave Libya illegally as they were generally subjected to close surveillance. Since the applicants did not have any travel documents, it could not be ruled out that they had left that country freely. The appellate board joined the Migration Board's view that the alleged risks to the applicants had been exaggerated.

By the above-mentioned decision, the removal order became final and the applicants were instructed to leave Sweden within two weeks.

Instead of complying with that decision, the applicants requested a stay on their deportation and the revision of their claims under Chapter 2, section 5(b), of the Aliens Act, which under certain circumstances provided such a possibility to persons who have stayed in Sweden for a long time. On 22 May 2006 the Migration Board rejected the request. The applicants, however, remained in the country.

On 7 July 2008 the Migration Board decided to stay the enforcement of the removal order in respect of the first applicant, as it had come to the Board's attention that a person previously deported from Sweden to Libya had allegedly been tortured to death by the authorities. After having obtained a report from the Ministry for Foreign Affairs and having looked into the matter in more detail, the Board considered that it had been a single tragic incident, while the overall situation concerning respect for human rights in Libya had improved in recent times, rather than becoming worse. There were thus no general reasons to abstain from removals to Libya.

In 10 July 2008 the applicants requested revision of the removal order. The first applicant asserted that his brother had been called in by the Libyan Security Police on a number of occasions, as they wanted to obtain information about the applicant's political activities. He further submitted that he had continued his opposition activities in Sweden. He claimed that the removal of the family to Libya would put their lives at risk. Removal to Morocco, on the other hand, would break up the family. Also, the couple now had a child, a daughter born in Sweden in May 2008.

On 23 October 2008 the Migration Board rejected the applicants' request, finding that no new circumstances warranting reopening of the case had been brought to its attention. It also stated that there was no evidence to support the allegation that the Libyan Security Police were interested in the first applicant's political activities. It was therefore decided to resume the enforcement of the removal order.

In the meantime, in September 2008, the second applicant again requested revision of the removal order and a stay on the removal, but to no avail.

The applicants appealed against the above decisions. On 29 December 2008 the court dismissed the appeals, finding that the applicants had not submitted any such new information that would justify a fresh examination of their case.

The applicants then filed another request for a stay on their removal, which was rejected by the Migration Board on 28 January 2009. The applicants appealed against that decision to the Migration Court submitting, inter alia, that it had come to their attention that the Libyan authorities were given instructions to conduct a thorough interview with all Libyan citizens returning to that country from Sweden. The first applicant stressed the fact that he had been close friends with Mohammed Adel Ben Ali, who had been tortured and killed by the Libyan authorities after having been returned to that country by force. As the first applicant's family back in Libya had been threatened by the authorities, he was convinced that he was of particular interest to them.

On 19 March 2009 the Migration Court dismissed the appeal, finding again that the applicants had not submitted any such new information that would give rise to a fresh examination of their case.

2. Application of Rule 39 of the Rules of Court and further information in the case

On 3 September 2009, at the applicants' request, the President of the Chamber decided to indicate to the Swedish Government, under Rule 39 of the Rules of Court, that the applicants should not be removed to Libya or Morocco until further notice.

The President also decided to put the following factual question to the applicants and the Swedish Government: “Would it be possible for the applicants to establish family life in Morocco?” As the first applicant had submitted to the Court that the Moroccan authorities had refused to grant him a residence permit in that country, he was also asked to provide the Court with further details of that alleged refusal, and the relevant documentation in support thereof.

On 14 September 2009 the first applicant submitted that he had been informed orally by the Moroccan embassy that he could not apply for a visa from the Moroccan embassy in Sweden but that he would have to go to the relevant authority in Morocco in person. The visa could be granted for a maximum period of three months. Lodgings and a steady income, among other conditions, were required in order to be granted a residence permit in Morocco. According to the applicant, he had neither. He also submitted that he would not be safe in Morocco as there were conventions concerning security matters between the Arab countries.

On 1 December 2009 the Government submitted information obtained with the assistance of the Swedish embassy in Morocco. According to that information, an alien married to a Moroccan citizen was presumed to be granted a so-called Carte de Résidence, which was tantamount to a residence permit. A Libyan citizen who was married to a Moroccan citizen should thus be able to acquire a residence permit in Morocco, provided that certain conditions, stipulated by law, were met. One of those conditions was that the marriage was registered or officially recognised within a certain time-limit. The Government acknowledged, however, that the legislation was somewhat imprecise and the result of a petition for recognition of a marriage was to a large degree dependent upon the discretion of the presiding judge. Thus, no guarantees could be provided as to the outcome of a specific case. In order to be certain that a marriage would be recognized in Morocco, couples should re-marry in the country where they currently resided and make sure that the marriage was registered in accordance with the law. The Government concluded that, with appropriate measures taken, no impediments seemed to be at hand regarding the applicants' possibility to establish family life in Morocco.

On 14 January 2010 the Court received a further submission from the first applicant. He argued that the provisions of Moroccan law invoked by the Government only applied to Moroccans living abroad. Moreover, the applicants' marriage certificate had not been registered as required by law, nor was such registration possible, due to the lapse of time. The first applicant also asserted that the marriage certificate falsely stipulated that the second applicant had been single at the time they married while, in fact, she had been a divorcee. This might be regarded as fraud by the Moroccan authorities. He further submitted that he had again received confirmation from Morocco that, in order to settle in that country, he would need steady employment or he would have to establish some other source of income in order to be granted a certificate stating his ability to support the family. The applicant contended that the Government had not referred to any provision of law which would support their allegation that a person in his situation was eligible for a residence permit in Morocco. On the contrary, official sources suggested that he would be expelled to his home country.

COMPLAINTS

The first applicant complained under Articles 2 and 3 of the Convention that if removed to Libya, either directly from Sweden or from Morocco, he would face a serious risk of ill-treatment and even death due to his anti-government views and activities. He claimed that a similar fate would await his wife and daughter in that country.

The applicants also complained, in substance, that if removed to Morocco, the first applicant would not be able to obtain a residence permit in that country and he would be removed further to Libya, which would break up the family in breach of Article 8 of the Convention.

THE LAW

By letter dated 23 March 2010 the Government informed the Court that, pursuant to Chapter 12, Section 22, of the Aliens Act the removal orders concerning the applicants had become time-barred on 27 February 2010 and could thus no longer be enforced. It was open to the applicants to file a fresh application for asylum with the Migration Board. A rejection of that application would, in turn, be subject to appeal to the appropriate Migration Court and the Migration Court of Appeal. The Government considered that, under the circumstances, the applicants could no longer be considered as victims within the meaning of Article 34 of the Convention and invited the Court to declare the application inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention. In the alternative, the Government submitted that the application should be declared inadmissible due to non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention. Were the Court to come to a different conclusion, the Government invited the Court to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention. They argued that, since the applicants did not currently run a risk of being deported, it was no longer justified to continue the examination of the application.

In their comments of 29 April 2010 the applicants confirmed the Government's submission that the removal orders had become time-barred. Moreover, the applicants informed the Court that they had filed a fresh asylum application in Sweden on 21 April 2010 and it was now for the Swedish authorities to consider their case anew, as indicated by the Government. The applicants did not, however, share the Government's view concerning the admissibility of the application. They further opposed the Government's invitation to strike the application out of the list of cases, considering it more appropriate to adjourn the proceedings before the Court pending the fresh examination of their asylum application at the domestic level.

The Court makes reference to the recent cases of Halilova and Others v. Sweden ((striking out), no. 20283/09, 19 January 2010) and X. v. Sweden ((striking out), no. 51104/08, 26 January 2010), where the applicants withdrew their applications after their respective removal orders had become time-barred and the Swedish migration authorities would therefore reconsider their cases on the merits. Having regard to Article 37 §§ 1 (a) and (b) of the Convention, the Court was of the opinion that it was no longer justified to continue the examination of those applications. Furthermore, the Court found no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which required the continued examination of those cases and struck them out of the list.

In this case, similarly to those mentioned above, the Court notes that the applicants no longer face a real and imminent risk of deportation from Sweden. The Court further notes that, were the applicants' fresh asylum application to be rejected, it would be open for them to appeal against that decision to the relevant courts. Thus, even though the outcome of the second set of the asylum proceedings is yet to be determined by the domestic authorities, the Court concludes that, in the circumstances, it is no longer justified to continue the examination of the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list under Article 37 § 1 (c) of the Convention and to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Boštjan M. Zupančič
Registrar President