K.L. v. SWEDEN
Inadmissible
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
1. The applicant is a Lebanese national who was born in 1980. He is currently in Sweden. He is represented before the Court by Mr T. Fridh, a lawyer practising in Gothenburg. 2. The Swedish Government (“the Government”) were represented by their Agent, Ms H. Lindquist, of the Ministry for Foreign Affairs. 3. On 29 December 2007 the applicant and his wife arrived in Sweden. They applied for asylum, and before the Migration Agency (Migrationsverket) the applicant essentially stated the following. He and his wife are Christians from South Lebanon. His brother, a member of the South Lebanese Army, had disappeared in 2000 and the applicant had contacted Hezbollah to inquire about his whereabouts. After the war in 2006, Hezbollah had accused the applicant of being a spy for Israel and had harassed him due to his religious beliefs. In September 2007 two members of Hezbollah had come to his and his wife’s house and physically assaulted his wife. He had tried to scare the intruders by firing into the air. Subsequently, he and his wife had hidden in a Christian neighbourhood in Beirut. Since, allegedly, the Lebanese authorities were unable to protect them, they had decided to leave the country. If returned to Lebanon, he would risk being killed. 4. On 4 March 2009 the Migration Agency rejected the applicant’s and his wife’s requests for asylum. It noted that, according to the UNHCR, the general situation in Lebanon after the armed conflict during the summer of 2006 and cessation of hostilities was such that Lebanese citizens who had fled because of the armed conflict were no longer automatically in need of international protection. It held therefore that the general situation in Lebanon did not in itself constitute a sufficient basis for granting asylum. Turning to the applicant’s individual claims, the Agency found that there was no evidence that he had been accused of being a spy, that he was wanted by Hezbollah or that the alleged threats and assaults were connected to Hezbollah. Furthermore, there was no evidence that the Lebanese authorities would be unable or unwilling to protect him. Moreover, it noted that nothing indicated that the applicant had controversial political or other affiliations which would make him of interest to any particular group in Lebanon. Consequently, the Agency concluded that, since the applicant had not substantiated his alleged grounds for asylum, and no other reasons for asylum had been established, his request should be rejected and his deportation to Lebanon ordered. 5. The applicant appealed to the Migration Court (Migrationsdomstolen) against the Migration Agency’s decision. He maintained his claims and added that one of the reasons why Hezbollah thought he was a spy was that he had volunteered as a paramedic, which had allowed him to move freely in the area of the armed conflict. If returned to Lebanon, he would risk being imprisoned or killed by Hezbollah because they considered him to be a spy who had defied Hezbollah and fired at them in his home. He could not report the incident to the police since Hezbollah exerted power over the authorities in Lebanon. 6. On 21 December 2009 the Migration Court upheld the Migration Agency’s decision. It found that the applicant could have been of some interest to Hezbollah due to his inquiries about his brother, his work as a paramedic and the threats and assaults to which the applicant and his wife had been subjected. However, the court found that the abuse the applicant and his wife feared from Hezbollah constituted criminal acts which fell within the responsibility of the Lebanese authorities. Since the applicant and his wife had not contacted the Lebanese authorities, they could not be deemed to have exhausted the protection available in Lebanon or made it probable that those authorities were unwilling or unable to protect them. Furthermore, the court held that, as the applicant had not been politically active, and his brother’s engagement with the South Lebanese Army dated back many years, there were no reasons to believe that the applicant would be of any particular interest to Hezbollah. 7. On 15 March 2010 the Migration Court of Appeal (Migrationsöverdomstolen) refused the applicant leave to appeal. 8. In July 2010 the applicant submitted to the Migration Agency a document alleged to be a Lebanese judgment by default dated 29 May 2008. According to the judgment, the applicant had been convicted, inter alia, of premeditated murder and sentenced to ten years’ imprisonment, including hard labour. 9. The Migration Agency considered the submission of the document to entail a request for a stay of the enforcement of the deportation order and a re-examination of its previous decision due to impediments to the enforcement. In its decision of 24 November 2010 the Agency noted that the applicant had not previously claimed that the Lebanese authorities had issued a warrant for his arrest and that he had not provided any information on how he had obtained the document in question. It therefore had the authenticity of the judgment examined. The examination, which revealed, inter alia, that the document was a copy created using toner technology and that the stamps and signatures on it had been produced by photocopiers or printers, led to the conclusion that there were strong indications that it was not authentic. The Agency accordingly decided that there was no ground for a re-examination of its decision of 4 March 2009. The applicant appealed to the Migration Court which, on 17 December 2010, upheld the Agency’s conclusions. 10. On 15 March 2014, the deportation order became timebarred and shortly thereafter the applicant and his wife again applied for asylum. 11. Before the Migration Agency, the applicant maintained his previous submissions but made some changes and additions. In particular, he claimed that he had shot and killed one of the men who had forced their way into his home in 2007 and that that man was the son of a high-ranking Hezbollah politician. Furthermore, due to his alleged conviction in absentia in 2008, Hezbollah had sought him at his parents’ and their neighbours’ homes, which showed that he was wanted by Hezbollah. He submitted an arrest warrant dated 5 July 2010. 12. On 6 November 2014 the Migration Agency rejected the applicant’s and his wife’s new requests for asylum. As concerns the arrest warrant, which allegedly was based on the above-mentioned conviction, it was found to be of a very simple and easily falsified nature. Furthermore, it was undated, seemed to be a copy and was not accompanied by an explanation as to how the applicant had obtained it. In view of this, the Agency concluded that the documents submitted had very low value as evidence and were not sufficient to substantiate the applicant’s asylum claims. The Agency then turned to the oral information submitted by the applicant. It found that, after having been refused asylum in 2010, he had changed his story significantly concerning the alleged incident at his home without providing any reasonable explanation. Moreover, he had failed to give a reasonable explanation as to why he had not mentioned the fatal shooting of the intruder, the conviction and the arrest warrant in the original asylum proceedings. The Agency thus found reason to question whether the alleged incident had occurred at all. It also noted that the applicant and his wife, despite numerous questions, had only submitted very parsimonious and vague answers concerning alleged visits and inquiries by Hezbollah to their parents and other family members. In addition, the Agency noted that the incident had allegedly occurred in 2007 and that there was no evidence indicating that Hezbollah would have any particular or current interest in the applicant. Furthermore, the Agency confirmed its previous findings regarding the general situation in Lebanon. Lastly, in regard to the applicant’s and his wife’s private life within the meaning of Article 8 of the Convention, it found that, for the majority of the time, they had resided in Sweden illegally and had much stronger links to Lebanon than to Sweden. Thus, they could not be granted leave to remain due to their residence in or connections to Sweden. The Agency concluded that no grounds for residence permits had been established and therefore ordered the applicant’s and his wife’s deportation to Lebanon. 13. The applicant appealed to the Migration Court. He maintained his claims and submitted, inter alia, documents from a lawyer and a security official at the Rafic Hariri International Airport which stated that he had been convicted and sentenced to ten years’ imprisonment and was wanted by the Lebanese authorities. 14. On 21 April 2015, after having held an oral hearing, the Migration Court upheld the Migration Agency’s decision. It agreed with the reasoning of the Agency concerning the probative value of the written evidence submitted and noted that the new documents were of a simple nature and did not substantiate his need for protection. Furthermore, the court found that the applicant’s and his wife’s accounts of the alleged incident in their home in 2007 were incoherent and contradictory. Consequently, it concluded that they had not demonstrated that Hezbollah had any interest in them, that they were exposed to risks against which they could not be protected by the Lebanese authorities or that they had been persecuted due to their Christian faith or for any other reason. Lastly, it shared the Agency’s reasoning concerning the lack of sufficient links to Sweden for granting them leave to remain. 15. On 10 June 2015 the Migration Court of Appeal refused leave to appeal. 16. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (utlänningslagen, 2005:716). 17. 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, of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a wellfounded 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). 18. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6). 19. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has acquired legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that 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 criteria, the Migration Agency may instead decide to re-examine the matter. Such re-examination is to be carried out where it may be assumed, on the basis of new circumstances relied on by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and that these circumstances could not have been raised previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Agency will decide not to grant re-examination (Chapter 12, section 19). 20. In March 2017 the US Department of State released the Lebanon Country Report on Human Rights Practices for 2016. It stated: “Lebanon is a parliamentary republic based on the 1943 National Pact, which apportions governmental authority among a Maronite Christian president, a Shia speaker of the Chamber of Deputies (parliament), and a Sunni prime minister... Civilian authorities maintained control over the armed forces and other security forces, although Palestinian security and militia forces, the designated terrorist group Hizballah, and other extremist elements operated outside the direction or control of government officials... The most significant human rights abuses during the year were torture and abuse by security forces, harsh prison and detention center conditions, and limitations on freedom of movement for Palestinian and Syrian refugees... Other human rights abuses included lengthy pretrial detention; a judiciary subject to political pressure and long delays in trials; violation of citizens’ privacy rights... Despite the presence of Lebanese and UN security forces, Hizballah retained significant influence over parts of the country, and the government made no tangible progress toward disbanding and disarming armed militia groups, including Hizballah... Authorities failed to observe many provisions of the law, and government security forces, as well as extralegal armed groups such as Hizballah, continued the practice of extrajudicial arrest and detention, including incommunicado detention. Additionally, the law permits military intelligence personnel to make arrests without warrants in cases involving military personnel or involving civilians suspected of espionage, treason, or weapons possession.” 21. The International Religious Freedom Report for 2015 of the US Department of State, released by the Bureau of Democracy, Human Rights and Labor, contained, inter alia, the following in respect of Lebanon: “The constitution states there shall be absolute freedom of conscience and guarantees the free exercise of religious rites for all religious groups provided the public order is not disturbed. The constitution states there shall be a “just and equitable balance” in the apportionment of cabinet and high level civil service positions among the major religious groups, a situation reaffirmed by the Taef Agreement, which ended the country’s civil war and mandated equal representation between Christians and Muslims in the parliament. Some minority Christian groups complained they were not granted proportionate representation in the cabinet, high level civil service positions, or the parliament. ... ... Religious leaders of Muslim and Christian communities reported places of worship continued to operate in relative peace and security, and that relationships among individual members of different religious groups generally remained amicable. ... Statistics Lebanon estimates 35.5 percent of the population is Christian. ...” 22. In a report of 30 November 2015 on his mission to Lebanon, the Special Rapporteur on Freedom of Religion or Belief of the UN Human Rights Council (OHCHR) set out, inter alia, the following conclusions: “In Lebanon, people are free to confess and practise their religions and beliefs in the way they see fit. Conversion in different directions is possible and indeed a reality – in stark contrast to the situation in most other Middle-Eastern countries. People can also bear public testimony to their faith and engage in missionary or dawa activities. Religious diversity is a visible and audible reality, as churches and mosques often stand in close vicinity and the ringing of bells at times intermingles with the Muslim call to prayer. Some Lebanese openly declare themselves as agnostics or atheists, and express critical views on religion in general, which is mostly appreciated as something quite natural in an open society. The country’s pluralistic heritage is a counterpoint to the aggressive agendas of sectarian homogenization that haunt some neighbouring countries. Over the centuries, a culture of interreligious coexistence has emerged that today helps to build resilience against extremist interpretations of religious traditions. Many families comprise persons of different religious orientations. Many people live, learn and work together across confessional lines, a situation that quite naturally fosters the discovery of common interests, values and convictions.”