HAJJ HUSSEIN v. SWEDEN
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert
The applicant, Zeina Hajj Hussein, was born in 1965 and claims to be Lebanese. However, the Swedish authorities found that she had not made it probable that she originates from Lebanon and therefore held that her case should be tried not only against Lebanon but also against the neighbouring countries Turkey and Syria. In 2006, the applicant had a relationship with a man who turned out to be a drug addict and dealer. After her parents banned her from seeing him, he started to harass her and threatened to kill her. Her brother also threatened to kill her due to that relationship. On 7 May 2009 the Migration Board rejected her asylum application as it found the alleged incident to be an act of criminality which was for the domestic authorities to handle. The applicant had neither turned to those authorities for protection nor made it probable that they could not provide protection against the threats in question. The Board therefore held that, should the applicant be victim of further crimes upon return, she could seek protection from the authorities in Lebanon, Syria or Turkey. On 22 November 2010 the Migration Court upheld the decision of the Board. As stated by herself in the present application, the applicant did not appeal against the Migration Court’s judgment to the Migration Court of Appeal. With the rejection of the applicant’s asylum application she has no right to remain in Sweden and can be removed without further proceedings. The provisions applicable in the present case are laid down in the Aliens Act (Utlänningslagen, 2005:716). The Act defines, inter alia, the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions. The 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 (Chapter 5, section 1). 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 (Chapter 4, section 1). 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). 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). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances give 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 where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these rules, 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, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). 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. The applicants are entitled to be represented before these bodies by publicly-appointed counsel (Chapter 14, section 3, Chapter 16, section 9, and Chapter 18, section 1). The time-limit for appeals to the final instance is three weeks from the date of the appealed judgment (Chapter 16, section 10). For a case to be considered by the Migration Court of Appeal, leave to appeal is required and will be granted if there are special reasons for hearing the appeal or if the determination of the Migration Court of Appeal may be of importance as a precedent. If leave to appeal is granted, the Migration Court of Appeal can decide the case on the merits (Chapter 16, section 12).