HUSSEIN MOSSI AND OTHERS v. SWEDEN
Inadmissible
The first applicant, Mr Fofana Hussein Mossi, born in 1962, is a national of the Democratic Republic of Congo. The other applicants are his former wife, Ms Patricia Hussein Mossi, and their two children, Lucky and Samantha, all Swedish nationals and born in 1970, 1992 and 1998 respectively, and his son from an earlier relation, Sadiki, who holds the same nationality as his father and was born in 1985. These four are living in Sweden while the first applicant is residing in Bukavu, in the Democratic Republic of Congo. They were represented before the Court by Mr S. Werner, a lawyer practising in Östersund (Sweden). s, may be summarised as follows. The first applicant belongs to the Banyamulenge (ethnic Tutsis of Rwandan origin) and he was born and raised in the city of Bukavu in the eastern part of the Democratic Republic of Congo (hereinafter referred to as “the DRC”). In 1985 he fled to Tanzania because he was a member of an illegal political party in the DRC. In June 1987 he travelled to Libya to participate in military training but he returned to Tanzania at the end of 1988. In August 1989, he went to Sweden where, in April 1991, the Immigration Board (Invandrarverket) rejected his application for asylum but granted him a permanent residence permit based on “de facto” reasons due to the situation in the DRC (then Zaire) combined with the applicant's personal situation. In September 1991 the first applicant married the second applicant in Tanzania, from where she originates and was living. She then travelled with him to Sweden where she was granted a permanent residence permit in November 1992. On 17 December 1992 their son, Lucky, was born and, on 16 June 1998, their daughter, Samantha, was born. These three have since been granted Swedish citizenship. Moreover, in May 1996, the family was joined by the first applicant's son, Sadiki. He had lived in Tanzania with his mother and came to Sweden because his mother died. According to the first and second applicants, they divorced just before the expulsion of the first applicant for practical reasons. They wanted to make it easier for the second applicant to live alone in Sweden with the children. On 9 June 1999, upon arrival at Arlanda Airport in Sweden, the first applicant was checked by customs officers and 591 grams of heroin was found in one of his bags. He was arrested and charged with an aggravated drugs crime (grovt narkotika brott) and the attempted aggravated smuggling of drugs (försök till grov varusmuggling av narkotika). On 10 November 1999 the District Court (tingsrätten) of Norrköping convicted the first applicant as charged and sentenced him to six and a half years' imprisonment and expulsion from Sweden with a prohibition on returning before 1 January 2015. When deciding the six and a half years' imprisonment, the District Court took into account the detriment caused to the first applicant by the expulsion and reduced the normal prison sentence, which would have been eight years' imprisonment. Concerning the expulsion, the District Court had requested the Immigration Board to submit its observations on the matter. The Board observed that the reasons invoked by the first applicant at the time when he was granted a permanent residence permit were not such that, according to the current practice, he would have been granted such a permit on humanitarian grounds. However, the Board found that it could not be excluded that, due to the situation in the DRC, there might be an impediment to the enforcement of an expulsion order. The District Court considered that the first applicant had a strong connection to Sweden because of his family and the fact that he had resided there for some ten years by that time. However, it noted that he had been convicted of lesser offences on six previous occasions: unlawful driving in 1993, aggravated unlawful driving in 1994 and 1995, unlawful driving and aggravated drink-driving in 1996, shop-lifting in 1997 and the unlawful use of documents in 1998. Moreover, the present offence was of a very serious nature having regard to the amount of heroin and its dangerousness to individual abusers and society as a whole. In these circumstances, the court concluded that there were particular reasons for expelling the applicant with a prohibition on returning before 1 January 2015. The first applicant appealed to the Göta Court of Appeal (Göta hovrätt), requesting that his prison sentence be reduced and the expulsion order repealed. On 5 January 2000 the Court of Appeal upheld the lower court's judgment in full. With regard to the expulsion, it shared the District Court's reasoning, adding that the first applicant had not succeeded in establishing himself on the Swedish labour market or adjusting to Swedish society, despite his many years in the country. It also observed that he kept in contact with his relatives in Africa whom he had visited for five months during the spring of 1999. The first applicant appealed to the Supreme Court (Högsta domstolen) which, on 4 February 2000, refused leave to appeal. In 2002 the applicants requested the Swedish Government, through the Ministry of Justice, to revoke the expulsion order and let the first applicant stay in Sweden with his family. On 14 November 2002 the Government rejected the request on the grounds that there was neither any impediment against the enforcement of the expulsion nor any other special reason under the Aliens Act to revoke the expulsion order. In March 2003 the applicants lodged a new application with the Government, requesting the revocation of the expulsion order. Primarily, the applicants invoked humanitarian grounds and Article 8 of the Convention, claiming that it would be inhuman to separate the family, in particular having regard to the children and their need for their father during their up-bringing. However, the first applicant also alleged that the very unstable situation in the DRC, and the fact that he belonged to a minority which was discriminated against, constituted impediments to his expulsion. With reference to the Court of Appeal's statement that he had visited relatives in Africa during five months in 1999, he stated that he had not visited the DRC since he came to Sweden in 1989, but that the visit had been to Tanzania. On 23 September 2003, after a request by the Government, the Migration Board (Migrationsverket) submitted its observation regarding the matter. It considered that the situation in the DRC had significantly improved after a peace agreement with Rwanda in July 2002 and a deal between the Government and rebel groups in April 2003. Thus, the Board found that there was no general impediment to sending persons back to that country. It noted that the UNHCR shared this view. It further considered that, even with regard to first applicant's ethnicity, there was no personal impediment to enforcing the expulsion order against him. The first applicant objected to the Migration Board's conclusions, stating that he had no relatives in Kinshasa and would not be able to support himself if sent there. He invoked a statement, dated 30 September 2003, by Mr T. Rideaus, an Information Officer at the Nordic Africa Institute (Nordiska Afrikainstitutet), in which Mr Rideaus stated that the situation in the DRC was still very unstable and that fundamental human rights were not guaranteed. Moreover, since the first applicant did not have any relatives in Kinshasa and did not speak the local language of the area, he would not be able to survive there and would face grave risks because he was Banyamulenge and this group was discriminated against and disliked in most parts of the country. On 8 October 2003 the first applicant was conditionally released from prison but placed in detention awaiting expulsion. On 16 October 2003 the Government rejected the request to have the expulsion order revoked, finding no reason to change their previous decision. On the same day, 16 October 2003, the first applicant was expelled to the DRC. Apparently, he arrived in Kinshasa where he remained for some time before travelling to his home town, Bukavu, where relatives have been helping him. He regularly calls his three children, and his eldest son transfers money to him every month. Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence. Provisions on expulsion on this ground are laid down in the Aliens Act. According to Chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. First, he or she must have been convicted of a crime that is punishable by imprisonment. Secondly, he or she may only be expelled if the sentence is more severe than a fine, and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he or she will continue committing crimes in Sweden, or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he or she ought not to be allowed to remain in the country. Furthermore, under Chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account the person's links to Swedish society. As regards aliens who are considered to be refugees and in need of protection in Sweden, they may be expelled only if they have committed a particularly serious crime and it would entail a serious danger for public order and safety to allow them to remain in Sweden. An alien with refugee status shall be considered as a refugee in need of protection in Sweden unless it is evident that he or she is no longer a refugee in such need. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien 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. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision. According to Chapter 7, section 16 of the Act, if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen), pardon or reduce a penal sanction or other legal effect of a criminal act.