European Court of Human Rights

Information Note on the Court’s case-law No. 164

June 2013

M.Y.H. and Others v. Sweden - 50859/10

Judgment 27.6.2013 See: [2013] ECHR 613 [Section V]

Article 3

Degrading treatment

Inhuman treatment

Expulsion

Proposed deportation of Christian family to Iraq: deportation would not constitute a violation

 

Facts - The applicants, who were Iraqi nationals, applied for asylum in Sweden after fleeing their country of origin because, as Christians living in a predominantly Muslim neighbourhood in Baghdad, they feared persecution. They stated that they had been subjected to threats and demands for money from masked men and that an attempt had been made to kidnap a member of their family when they had been unable to pay the sum demanded. The Swedish Migration Board rejected their applications and that decision was upheld by the Migration Court on the grounds that the evidence did not suggest that there was an individualised threat against the applicants upon return.

Law - Article 3: While the international reports on Iraq attested to a continuing difficult situation, including indiscriminate and deadly attacks by violent groups, and discrimination and heavy-handed treatment by the authorities, it appeared that the overall situation was slowly improving. Indeed, the applicants did not claim that, by itself, the general situation in Iraq precluded their return; instead, it was that situation combined with the fact that they were Christians that put them at real risk of being subjected to prohibited treatment. However, while noting that Christians formed a vulnerable minority that had been subjected to escalating and targeted attacks in the southern and central parts of Iraq, the Court noted that an internal relocation alternative was available in the Kurdistan Region. According to international sources this was a relatively safe area in which large numbers of Christians had found refuge and where their rights were generally considered to be respected.

The Court reiterated that as a precondition to relying on an internal flight or relocation alternative, certain guarantees had to be in place: persons due to be expelled had to be able to travel to the area concerned, gain admittance and settle there, particularly if in the absence of such guarantees there was a possibility of their ending up in a part of the country of origin where there was a real risk of ill-treatment. As regards entry to the Kurdistan Region, difficulties that had been faced by some at the checkpoints did not seem to be relevant for Christians, who, it appeared, were given preferential treatment. There was also evidence to suggest that no-one was required to have a sponsor, whether for entry or for continued residence. While various sources had attested that people relocating to the Kurdistan Region could face difficulties, for instance, in finding proper jobs and housing, the evidence before the Court suggested that there were jobs available and that settlers had access to health care and to financial and other support from the UNHCR and local authorities. In any event, there was no indication that the general living conditions in the region for Christian settlers would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor was there a real risk of their ending up in other parts of Iraq. Relocation to the Kurdistan Region was thus a viable alternative for a Christian fearing persecution or ill-treatment in other parts of Iraq. Lastly, there was nothing in the applicants’ personal circumstances to indicate that they would be at risk in the Kurdistan Region, especially bearing in mind that the incidents to which they had been subjected had all occurred in Baghdad.

Conclusion: deportation would not constitute a violation (five votes to two).

(See also, on the question of internal flight alternatives: Salah Sheekh v. the Netherlands, no. 1948/04, 11 January 2007, Information Note no. 93; Sufi and Elmi v. the United Kingdom, no. 8319/07, 28 June 2011, Information Note no. 142; and two judgments - D.N.M. v. Sweden, no. 28379/11, and S.A. v. Sweden, no. 66523/10, both delivered on the same day as the instant case of M.Y.H. and Others v. Sweden - in which the applicants alleged that they would be at risk of honour-related crimes if deported to Iraq. In both cases, the Court found that although the evidence indicated that the applicants might not receive effective protection from the authorities, as honour killings were often committed with impunity in Iraq, and although it was unclear whether relocation in the Kurdistan Region was a viable option for persons such as the applicants who were Sunni Muslims, it would nevertheless be possible, on the facts, for them to relocate elsewhere in Iraq where they would not be in danger of persecution from the families and clans who had threatened them. Lastly, for another case on the risk of honour-related crime in the country of destination, see N. v. Sweden, no. 23505/09, 20 July 2010, Information Note no. 132)

 

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