European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 11152/09
by Rawand HIKMAT HABIB
against Sweden

The European Court of Human Rights (Fifth Section), sitting on 4 January 2012 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 19 February 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Rawand Hikmat Habib, is an Iraqi national who was born in 1984 and is currently in Sweden.

A.  The circumstances of the case

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

On 13 September 2006 the applicant applied for asylum and a residence permit in Sweden, claiming that he had arrived in Sweden four days earlier. In written submissions and during interviews with the Migration Board (Migrationsverket), where the applicant’s legal counsel was present, he stated that he was Kurdish, born in Kirkuk, but that his family had been moved to Erbil (the capital of the Kurdistan Regional Government area, hearafter “the KRG area”) in 1988 and had lived there until 2003 when, after the fall of Saddam Hussein, they had returned to the family’s house in Kirkuk. He claimed that his father had then worked for the American Army as an interpreter and that, in 2006, they had heard from neighbours that terrorists were looking for his father because he had cooperated with the Americans. The applicant further alleged that he and his uncle had owned a catering business which delivered food to the American troops in the area of Aton Kopri (Prdé). Thus, when his father was threatened by the terrorists, the applicant had also felt insecure and under threat due to his own work. He therefore terminated the contract with the Americans and he and his family, including his uncle, moved to the city of their ancestors, Hassar (a town outside Kirkuk). The applicant acknowledged that he had never been personally threatened but, during his time in Hassar, the family was informed that the terrorists were still looking for them in Kirkuk. Moreover, the applicant claimed that he could not return to Erbil since he had no relatives left there and the terrorists could find him there as well. To prove his identity, the applicant submitted a certificate of citizenship issued in Erbil in 2002 and an identity card issued in Kirkuk in 2006.

On 15 April 2007 the Migration Board rejected the application. It first noted that the applicant had lived most of his life in Erbil and that he was Kurdish and that, therefore, it would try his asylum claim on the basis that he came from the KRG area of Iraq. The Board then observed that he had not shown that he could not benefit from the protection and help of the authorities in the KRG area against the alleged terrorist threat. In its view, nothing in the case indicated that the applicant would not benefit from the authorities’ protection to the same extent as other citizens of the area. As the Board found that there were no other grounds on which to grant the applicant leave to remain in Sweden, it rejected his application. The Board added, for information, that it had a contract with a German organisation with the goal of facilitating reintegration for returnees to the KRG area through labour market measures, such as financial support to create a business.

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that, in June 2007, his family’s house in Hassar had been the target of a grenade attack. His family had then moved to Syria. Thus, it was clear to him that the authorities could not protect him. Moreover, he wanted his application to be tried on the basis that he came from Kirkuk and not the KRG area since he had no personal connection to that area.

On 27 September 2007 the Migration Court, after having held an oral hearing, rejected the appeal. It first noted that since the Migration Board had tried the applicant’s claim in relation to the KRG area, the court would do so as well. Moreover, since he had lived there most of his life and done all his schooling there, including after reaching maturity, the court found that he had a close connection to Erbil. In respect to this, it also noted that his certificate of citizenship had been issued in Erbil in 2002 for which reason he should have no practical problems returning there. As concerned the threat from terrorists, the court noted that these had primarily been directed against the applicant’s father and that they had emanated from individual persons, not the authorities. Furthermore, the threats had occurred in Kirkuk. As the applicant had not been able to specify any concrete threat against him personally, in particular if he were to return to Erbil, the court concluded that he had not shown that he would face a real and personal risk of persecution or ill-treatment in the KRG area. As there was no other ground on which to grant the applicant leave to remain in Sweden, the court upheld the Migration Board’s decision in full.

On 11 January 2008 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. The deportation order thereby became enforceable.

In June 2008 the applicant lodged an application with the Migration Board for reconsideration of his case due to new circumstances. He maintained his previous claims but added that he had contacted the US Army in Kirkuk to ask some former colleagues about the threats against him. In reply, he had received a letter, via e-mail on 7 May 2008, from Deron R. Haught, Company Commander in Kirkuk which he insisted proved that he was sought by terrorists and that they wanted to kill him. The e-mail included a “Memorandum for Swedish Migration Board”, dated 7 May 2008, and signed by Deron R. Haught, Company Commander in Iraq. In this, the commander stated that, during his first deployment to Iraq in 2004-2005, he had been stationed in Kirkuk where the applicant’s father had been his interpreter. In this connection, he had also come to know the applicant who had “played a key role in the establishment of a new Iraqi Army Company in Kirkuk Province through the coordination and delivery of a food service contract in support of this Company.” This Iraqi Company had provided security for over 30,000 Iraqi citizens but had put the applicant at risk from Anti-Coalition Forces. Against this background, the commander asked the Swedish Migration Board to “give special consideration to [the applicant] when deciding his immigration status” since “[f]orcing him to return to Iraq at this time poses great risks to his personal safety.”

On 4 July 2008 the Migration Board decided not to reconsider the case since no new circumstances had been presented and it had already considered the applicant’s fear of being targeted by terrorists.

The applicant appealed to the Migration Court, insisting that the letter clearly showed that he was a target for terrorists and that he was at the top of their “death list”. On 16 September 2008 the court upheld the Board’s decision in full. It is unclear whether this judgment was appealed against to the Migration Court of Appeal.

B.  Relevant domestic law and practice

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.

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).

As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. 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).

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 invoked 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 invoked 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).

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.  International sources on the three Northern Governorates of Iraq

The UNCHR’s “Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers”, dated April 2009 states, inter alia, that since 2003 the three Northern Governorates of Dahuk, Erbil and Sulaymaniyah have largely escaped the violence and collapse of law and order prevalent in many parts of the Centre and South and remain relatively quiet and stable although the security situation remains tenuous and unpredictable for a number of reasons. Therefore, the UNHCR maintains its position thus far that claims from asylum-seekers from these three Northern Governorates should be individually assessed based on the 1951 Convention refugee definition. The UNCHR further observes that persons originating from this area can enter the Governorate of Erbil without any restrictions. Moreover, it notes that, generally, the Kurdish authorities will be able and willing to provide protection although certain persons, particularly those fleeing “honour killings” or tribal conflict (blood feud), may still be reached by their persecutors if relocated within Iraq.

As concerns the situation of Iraqis affiliated with the Multi-National Forces (MNF-I) in all of Iraq, the UNHCR maintains its previous position that civilians employed or otherwise affiliated with the MNF-I are at risk of being targeted by non-state actors. In areas where security has improved over the last year (2008), the risks to persons affiliated with the MNF-I have diminished to some extent, but are still considerable given the continued influence of extremist groups. The risk is particularly high for persons working as interpreters for the MNF-I given their exposure and possible involvement in military activities, for example arrests, raids or interrogation of insurgent or militia members.

The position of the UNCHR in the above Guidelines has been endorsed as still being valid in their “Note of the Continued Applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers”, dated 28 July 2010. This note further observes that the Kurdistan Region remains relatively stable, though assaults on journalists and political opponents have been reported.

Moreover, Amnesty International’s “Report 2011 on Iraq” states, inter alia, that the Kurdistan region remains largely unaffected by the political violence seen in other parts of Iraq and that human rights conditions continues generally to improve, although many abuses are reported.

This view is shared by the “2010 Report on Human Rights in Iraq” by UNAMI Human Rights Office/OHCHR, dated January 2011, which notes that the situation is generally improving in the Kurdistan region. In their view, the security situation is stable, with very few security incidents or casualties reported (only 22 reported civilian deaths in the KRG area during 2010). They further observe that the improved security situation, matched with the increasing openness of the Kurdistan Regional authorities, means greater participation of civil society and NGOs in seeking solutions to the remaining human rights concerns in the region. In this respect, the Kurdistan Regional Government has shown itself to be open to dialogue and to work in a largely cooperative manner with the United Nations in relation to human rights issues throughout the region.

COMPLAINTS

The applicant complained under Articles 2 and 3 of the Convention that, if deported from Sweden to Iraq, he would be tortured and killed by terrorists because he and an uncle had run a catering service which supplied food to the Americans and his father had worked as an interpreter for the American army in Kirkuk.

THE LAW

The applicant alleged that his deportation to Iraq would constitute a violation of Articles 2 and 3 of the Convention which, in relevant parts, read:

Article 2 (right to life)

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

...”

Article 3 (prohibition of torture)

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court finds that the issues under Article 2 and 3 of the Convention are indissociable and it will therefore examine them together.

The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI, p. 2264, § 42).

However, expulsion 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 concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008).

The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).

The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005).

In cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention relating to the status of refugees. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see, NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008).

Turning to the present case, the Court notes at the outset that the Swedish authorities have decided that the applicant will be returned to the KRG area of Iraq and not to any other part of the country. It will therefore proceed on this basis, noting that there are regular flights to Erbil from, inter alia, Stockholm and Gothenburg.

Whilst the Court is aware of the reports of human rights abuses in the KRG area of Iraq, it does not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the applicant were to return to that area. The Court has to establish whether the applicant’s personal situation is such that his return to the KRG area would contravene the relevant provisions of the Convention.

In this respect, the Court observes that the applicant alleges that terrorists are searching for him and his family to kill them for cooperating with the enemy. However, it notes that the threats appear to date back to 2006 and to have been primarily directed against the applicant’s father who was an interpreter for the American army in Kirkuk. Although the applicant’s own activities delivering food to the army company in Kirkuk may have put him at a certain risk from Anti-Coalition Forces, as noted by the American Company Commander in his letter to the Migration Board and by the UNHCR, he has failed to show that he was ever personally threatened or otherwise targeted while working in Kirkuk. In any event, the Court finds that the alleged threats came from individuals in the Kirkuk area and that the applicant has not shown that these persons would pose a threat to him in the KRG area. Moreover, according to the country information above, international sources agree that the KRG area is relatively stable and that the Kurdish authorities have effective control of the area and are both able and willing to provide protection to its population.

In relation to this, the Court considers that since the applicant is of Kurdish origin, lived more than 15 years in Erbil, did all his schooling, including higher education, in Erbil and, moreover, has a certificate of citizenship issued in Erbil in 2002, there appears to be no impediment to him being allowed to return to this city by the Kurdish authorities.

Furthermore, the Court notes that the Migration Board and the Migration Court both conducted a thorough examination of the applicant’s case, and that he was heard and assisted by appointed counsel. The national authorities had the benefit of seeing, hearing and questioning the applicant in person and of assessing directly the information and documents submitted by him, before deciding the case. The Court finds no reason to conclude that their decisions were inadequate or that the outcome of the proceedings before the two instances was arbitrary. Furthermore, there are no indications that the assessment made by the domestic authorities was insufficiently supported by relevant materials or that the authorities were wrong in their conclusion that there were no substantial grounds for finding that the applicant would risk being persecuted upon return to the KRG area of Iraq.

In these circumstances, the Court finds that the applicant has failed to substantiate that his return to the KRG area of Iraq would expose him to a real and concrete risk of being killed or subjected to ill-treatment contrary to Articles 2 or 3 of the Convention.

It follows that the application 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.

For these reasons, the Court by a majority

Declares the application inadmissible.

Stephen Phillips Dean Spielmann
Deputy Registrar President