CASE OF M.T. v. SWEDEN
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Kyrgyzstan)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
6. The applicant was born in 1985 and is currently in Sweden. 7. In December 2009 the applicant arrived in Sweden and applied for asylum and a residence permit. Before the Migration Board (Migrationsverket), he submitted essentially the following. He is an ethnic Uyghur from Bishkek, Kyrgyzstan. He had run a business in his home country and had bought goods from his business partner, also an ethnic Uyghur, in China. In August 2009 the business partner had been arrested and since he had been in the possession of a receipt from the applicant, they had both been indicted on suspicion of financially supporting the Uyghur disturbances in China. In September 2009 the applicant had been arrested by the Kyrgyz police. His health had deteriorated while he was in custody and, after his release, he had been hospitalised because of his kidney problems. The doctors had informed him that he needed to have blood dialysis but that there was a two-year waiting list. After having been pressured by the authorities, the doctors had informed the applicant that he would not receive any blood dialysis. Moreover, his family had informed him that the police had come to his house looking for him several times after he had left the country. He suffered from chronic kidney failure and was in need of dialysis three times per week. 8. The Board held a supplementary interview with the applicant in June 2010 where he claimed that, during his detention, the Kyrgyz police had taken his passport, forced him to sign a travel ban and had also ill-treated him. He had been summoned to appear in court a few times and, after the second summons, he had left the country. He had received written summonses but he had not brought them with him to Sweden and he could not contact his family since he feared their telephone was tapped. The applicant further believed that the Chinese authorities had contacted the Kyrgyz authorities and that for this reason he had been refused medical treatment. However, he also claimed that he had been refused treatment already in the spring of 2009, before being called by the police. 9. On 17 June 2010, the Migration Board rejected the application. It first noted that the applicant had failed to submit any written evidence in support of his claims. It further found it noteworthy that central parts of the applicant’s story had only been provided at the supplementary interview and not at the initial interview or in written submissions. It therefore considered that he had escalated the threat against him during the asylum proceedings. The Board further noted that the applicant had submitted contradictory information as to when he had been denied health care. First he had stated that he had been refused dialysis after his detention in the autumn of 2009 while, during the supplementary interview, he had stated that he had been refused treatment already in the spring of 2009. In any event, the Board observed that there had been a regime change in Kyrgyzstan since the applicant had left the country and that there was nothing to indicate that the present regime would have any specific interest in him. Thus, the Board concluded that the applicant was not in need of international protection. 10. As concerned the applicant’s health, the Board noted that the applicant had submitted a medical certificate according to which he suffered from chronic kidney failure secondary to chronic glomerulonephritis and received blood dialysis three times per week. Without the dialysis he would die within two to three weeks. The Board found that, according to the applicant’s own submissions, blood dialysis was available in Kyrgyzstan and, since he had not been found credible, he had also failed to substantiate that he would be denied proper treatment upon return. Consequently, he could not be granted a residence permit and was to be expelled from Sweden. 11. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that he had not given contradictory information about the refusal to treat him in Kyrgyzstan. He had been diagnosed during the spring of 2009 and then been informed about the two to three years’ waiting time. However, it was only after his arrest in September 2009 that the doctors told him that he would not receive any dialysis treatment at all. As concerned the regime change, there was no indication that the situation had improved for the Uyghur people. He further submitted new medical certificates confirming his illness and need for treatment. 12. The Migration Court decided to hold an oral hearing during which the applicant added, inter alia, the following. He had been questioned by the police twice. The first time, in September 2009, the police had asked him whether he financially supported the Uyghur disturbances in China and they had beaten him all over his body, including on the kidneys. When he had lost consciousness, the police had become scared and had released him. During the second questioning, the police had confiscated his passport and imposed a travel ban on him. He had later been summoned to court but had not attended. Instead, he had decided to leave the country and had paid a smuggler to help him. After arriving in Sweden, he had been in contact via telephone and internet with friends and family in Kyrgyzstan, who had informed him that the Kyrgyz authorities had been to his house looking for him and that he had received further summonses. In relation to his illness, he claimed that the Chinese would keep searching for him and that he would therefore not receive any treatment in his home country. He also submitted an extract from his Kyrgyz medical record which he had received when he was released from hospital in November 2009 and which he had brought with him to Sweden. 13. On 13 July 2011, the Migration Court rejected the appeal. It noted that the applicant had failed to substantiate his identity but accepted that he came from Kyrgyzstan. It further observed that he had not submitted any written evidence in support of his alleged need for protection for which reason his credibility was decisive for the outcome. However, the court considered that the applicant’s submissions were far-fetched, lacking in detail and that they contained contradictory information. For instance, as concerned the applicant’s submissions that the Chinese authorities suspected him of sponsoring the Uyghur disturbances in China, the court found this improbable since the applicant had had a clear business relationship with the person in China over several years. Moreover, he had submitted contradictory information as to when he had been refused medical treatment and how many times he had been summoned to court. Therefore, the court concluded that the applicant’s submissions were not credible and that he had failed to substantiate that he would be at risk of persecution upon return. 14. As to the applicant’s health, the court noted that it was undisputed that he suffered from chronic kidney failure and that he was in need of regular blood dialysis and medication to survive. Without the dialysis, he would die within a couple of weeks and, apart from regular treatment, the only other solution was a kidney transplant. His state of health was consequently extremely serious. Moreover, the court observed that it was clear that blood dialysis was available in Kyrgyzstan while, according to the applicant, kidney transplants were not carried out. According to the applicant’s own submissions, in the spring of 2009 he had been placed on a waiting list for dialysis and the waiting time had been two to three years. After having been arrested in September 2009, his name had allegedly been removed from the waiting list and he had been refused treatment. However, the court noted that, according to the extract from the applicant’s medical records, he had been hospitalised in Kyrgyzstan because of his kidney disease in April 2009 and again from 27 October to 5 November 2009, on the second occasion with the diagnosis of chronic terminal kidney failure. Since, according to the most recent Swedish medical certificate, a person with such a diagnosis would die within a couple of weeks without blood dialysis, the court concluded that the applicant had received medical care both before and after being arrested by the police. He had thus failed to substantiate that he would not receive adequate treatment within a reasonable time upon return to Kyrgyzstan. 15. Upon further appeal by the applicant, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 24 November 2011. Hence, the expulsion order became enforceable. 16. On 23 December 2011 the applicant lodged his application with the Court and requested it to apply Rule 39 of the Rules of Court. On 18 January 2012, the acting President of the Section to which the case had been allocated acceded to the applicant’s request and indicated to the Government that the applicant should not be expelled to Kyrgyzstan for the duration of the proceedings before the Court. On the same date, the application was communicated to the Government. 17. In view of the Court’s indication to the Government, the Migration Court decided, on 19 January 2012, to stay the enforcement of the expulsion order against the applicant until further notice. 18. In the meantime, on 2 January 2012 the applicant requested the Migration Board to stay the enforcement of the expulsion order as there were impediments to it due his deteriorated health and to grant him a residence permit. He submitted a medical certificate, dated 29 December 2011, by a Chief Physician at the Kidney Medical Clinic of Karolinska University Hospital in Stockholm. It stated that the applicant had had a crisis reaction to the expulsion order against him and had not attended two dialysis sessions. As a result, his health had significantly deteriorated and he had been given emergency dialysis and had also met with a psychiatrist. He had been kept in hospital due to his poor mental and physical health. It would be completely unreasonable to expel him without ensuring that dialysis would be available to him upon return to his home country. 19. On 23 January 2012 the Migration Board rejected the request. It considered that the applicant had invoked no new circumstances concerning his health which could alter the assessment made by the Migration Court in the initial proceedings or which amounted to an impediment to the enforcement of the expulsion order. 20. In September 2012 the applicant again requested the Migration Board to stay the enforcement of the expulsion order and to grant him a residence permit in Sweden since the impediment to the enforcement was permanent. He had been in contact with his family in Kyrgyzstan and, through them, obtained a certificate from the Kyrgyz Ministry of Health, dated 9 July 2012, which confirmed that the applicant had been on the national waiting list for blood dialysis since 27 October 2009. It further stated that due to the lack of dialysis equipment and the increasing number of patients in need of treatment, there was currently no possibility to offer the applicant dialysis within the public health care system in the country. The applicant had also received from his family a certificate, dated 23 December 2011, and issued by the hospital where he had previously been treated, the National Centre for Cardiology and Treatment. It stated that the applicant had been treated at the Centre’s unit for nephrology for glomerulonephritis and final stages of chronical kidney failure. It further stated that due to the lack of equipment he could not go through the programme for dialysis. He had, however, been put on the national waiting list. 21. On 20 November 2012 the Migration Board rejected the request as it found that the new certificates did not alter the assessment made in the initial proceedings and that, consequently, there were no grounds on which to grant the applicant a residence permit. 22. In February 2014 the applicant’s father wrote to the Kyrgyz Ministry of Health requesting that the applicant be given treatment in Kyrgyzstan for his illness. He noted in the letter that he had had to send the applicant to Sweden to save his life but that they wanted him to be treated in Kyrgyzstan. 23. A week later, on 17 February 2014, the Ministry replied to the applicant’s father. However, the reply, which contains no specific addressee, would appear to be rather a request to the Swedish health care system to provide the applicant with proper treatment as it states that, due to the long waiting time and lack of dialysis equipment, it is not possible for them to treat the applicant in Kyrgyzstan and they are grateful for the invaluable contribution to the health care of a citizen of Kyrgyzstan.