KAZIĆ AND OTHERS v. SWEDEN
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
1. The first applicant is Mr Teufik Kazić, the second applicant is his wife, Mrs Nafa Kazić, and the third applicant is their son, Mr Admir Kazić. They are nationals of Bosnia and Herzegovina and were born in 1968, 1970 and 1997 respectively. They are currently in Sweden. They were represented before the Court by Mr M. Eklöf, a lawyer practising in Växjö. 3. In December 2012 the applicants applied for asylum in Sweden. They submitted essentially that the third applicant could not receive the necessary neuropediatric care in their home town, Bihać, in Bosnia and Herzegovina. They submitted that he suffered from epilepsy and had issues with his head and legs. Up until six to seven years earlier there had been a specialist physician in Bihać but after that time he had had to go to Republika Srpska for health care. No physician in the country had been willing to prescribe medicine as there was no specialist in their home town to issue a certificate. There was also no physiotherapy available in Bosnia and Herzegovina. Moreover, the third applicant had been bullied and humiliated because of his handicap and, on one occasion, the second applicant had been threatened when she had wanted to stay with the third applicant at a hospital. The first applicant also alleged that on one occasion in Republika Srpska he had been assaulted and the windshield of his car had been smashed because he was a Muslim. The applicants submitted their passports and a medical certificate concerning the third applicant. 4. On 24 April 2013 the Migration Agency (Migrationsverket) rejected their applications. Firstly, it found that the applicants could turn to the domestic authorities for protection if they were subjected to threats or ill-treatment by private individuals in the future. The Agency further noted that according to the medical certificate the third applicant had difficulties with his daily routines and that, according to his mother, he had been having epileptic attacks since he was two and a half years old. He received medication and the health-care authorities were examining whether he suffered from a developmental disorder. The Agency concluded that the third applicant’s health conditions were not serious enough to grant him a residence permit. He had received health care and medication in Republika Srpska, which was part of Bosnia and Herzegovina, and there was no indication that it would not be possible for him to receive health care in his home country in the future. The applicants’ applications were therefore rejected and their expulsion to Bosnia and Herzegovina was ordered. 5. The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that the third applicant suffered from several disabilities for which he required regular care to manage his daily life. The measures which had been put in place in Sweden were beneficial to him. 6. On 6 May 2014 the Migration Court rejected the appeal, upholding the reasoning of the Migration Agency. It noted that according to the available country information, the family could rely on the protection of the authorities in their home country. The court further observed that the third applicant suffered from epilepsy, kyphosis, discreet scoliosis, cerebral palsy and a moderately difficult mental development disorder for which he was in need of medical treatment and constant supervision and care. However, his condition was not life-threatening and he had lived with his condition for sixteen years in his home country where he had received specialist medical treatment and care. 7. Upon further appeal by the applicants, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 8 July 2014. 8. Subsequently, the applicants requested that the Migration Agency stay the enforcement of the expulsion order as there were impediments due to the third applicant’s health problems, the lack of special schools in Bosnia and Herzegovina and the fact that his sister lived in Sweden. Several medical certificates were submitted which, inter alia, stated that in March 2014 the third applicant had undergone orthopaedic surgery which required several months of rehabilitation. If the rehabilitation were to be interrupted, he would run the risk of not regaining the ability to walk, which he had been able to do prior to the surgery. 9. On 26 November 2014 the Migration Agency granted the applicants temporary residence permits for one year. It held that there were temporary impediments to the applicants’ expulsion due to the third applicant’s age, his need for rehabilitation after the surgery and the consequences for his health if the rehabilitation were to be interrupted. It further noted that if the third applicant needed additional rehabilitation after a year, he could submit a new application for a further stay of enforcement of the expulsion order. 10. In November 2015 the applicants submitted a new request to the Migration Agency to stay the enforcement of the expulsion order. They stated that the third applicant was in need of further surgery and extensive and long-lasting rehabilitation owing to his kyphosis. They relied on additional medical certificates which, inter alia, indicated that the third applicant’s kyphosis had worsened and that he was deemed to be in need of surgery in the coming years. 11. On 7 April 2016 the Migration Agency rejected the request. It found that it had not been shown that the third applicant’s health condition was of such a nature that it would not be possible to enforce the expulsion order. The Agency noted that the third applicant had become an adult and consequently the more generous rule applicable to children, which had previously been applied to him, was no longer applicable. Moreover, it observed that the medical certificates did not support the conclusion that the third applicant’s condition was acute, that he was in immediate need of additional surgery or that the medical care in question could be expected to lead to a substantial and permanent improvement in his condition or be of a life-saving nature. Furthermore, the previous rehabilitation, after the surgery in March 2014, was deemed to have been completed. The Agency therefore concluded that the third applicant’s health condition could not be considered as being so extremely serious that it would be unreasonable to enforce the expulsion order against him. 12. Subsequently, the applicants again renewed their request for a stay of the enforcement of the expulsion order. They submitted more medical documents, including one from a physician in Bosnia and Herzegovina stating that the third applicant’s case was complicated and that it would not be possible to perform all the surgery he needed there owing to his health complications. 13. On 27 May 2016 the Migration Agency rejected the request, with essentially the same reasoning as in its previous decision. It noted that the medical document from the physician in Bosnia and Herzegovina did not show that the third applicant had no possibility to receive the necessary health care in his home country. 14. Another request by the applicants for a stay of enforcement of the expulsion order was rejected by the Migration Agency on 5 July 2016, with essentially the same reasoning as in its previous decisions. 15. On 14 July 2016 the applicants lodged their application with the Court and requested that it apply Rule 39 of the Rules of Court. On 4 August 2016 the duty judge rejected the request for interim measures. 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). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. 17. Chapter 5, section 1, of the Aliens Act sets out 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. According to Chapter 4, 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 the grounds of race, nationality, religious or political beliefs, or on the 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. 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, a permit may nevertheless 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). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. According to the preparatory works (Government Bill 2004/05:170, pp. 190 and 280), life-threatening physical or mental illness may be a reason to grant a residence permit in Sweden. However, regard must be had to whether it is reasonable that the required care is provided in Sweden or whether adequate care can be provided in the alien’s country of origin. Moreover, the care provided in Sweden must be expected to lead to an evident and enduring improvement in the alien’s health or be necessary for his or her survival. 19. 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). 20. 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 have emerged which indicate that there are 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 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 this criterion, 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 have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). 21. Domestic laws on health care (published in the Official Gazette of FBiH, no. 46/10, and in the Official Gazette of RS, no. 106/09, 44/15) provide for a right to health care, on an equal basis, to persons with disabilities, and provide for specific forms of health care for such persons. 22. As concerns social protection, domestic laws provide for the preferential employment of persons with disabilities, professional rehabilitation, as well as training and the employment of individuals with disabilities and a lowered work capacity. Moreover, it enables persons with disabilities to obtain financial and material support for the purpose of equal opportunities, including the right to the care and assistance of others for persons with the most serious forms of disability, or persons who need assistance with undertaking their basic life needs (see the Law on professional rehabilitation and employment of individuals with a disability, published in the Official Gazette of FBiH, no. 9/10 and in Official Gazette of RS, no. 37/12, 82/15; the Law on mediation in employment and the social security of unemployed individuals, published in the Official Gazette of FBiH, no. 55/00, 41/01, 22/05 and 9/08; the Law on mediation in employment and on rights during unemployment, published in the Official Gazette of RS, no. 30/10, 102/12; the Law on the foundations of social protection, the protection of civilian victims of war and the protection of families with children, published in the Official Gazette FBiH, no. 36/99, 54/04, 39/06, 14/09; and the Law on social protection, published in the Official Gazette of RS, no. 37/12). 23. Legislation relating to education contains principles on the prohibition of discrimination of persons with disabilities and on the provision of equal opportunities for education through inclusive education or the establishment of special institutions (see, for example, the Framework Law on pre-school upbringing and education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 88/07; the Framework Law on elementary and high school education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 18/03, 88/07; and the Framework Law on higher education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 59/07 and 59/09).