A.M. AND OTHERS v. SWEDEN
Inadmissible
Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
The applicants, a family of four, are Russian nationals who were born in 1965, 1965, 1991 and 1996, respectively, and are currently in Sweden. s, may be summarised as follows. The first applicant arrived in Sweden and applied for asylum and a residence permit on 15 October 2004. Before the Migration Board (Migrationsverket), he claimed that he had been a major in the Russian army and had witnessed how other officers were involved in illicit smuggling of weapons. He had reported it to his superiors with the result that he had been assaulted and threatened but no investigation had been instituted. A colonel, who had been involved in the smuggling, had threatened to kill the first applicant or have him committed to a psychiatric clinic. To protect his family, he had divorced his wife and moved out of their common home. In October 2003 he had resigned from the military and had commenced a civil employment. About one year later the colonel had contacted him and had wanted him to take part in some form of illegal activity failing which he would be killed. Out of fear, the first applicant had left the country. He submitted a copy of a referral to a psychiatric clinic for forced hospitalisation, dated 10 April 2003, and a medical certificate stating that he had been hospitalised because of concussion and was exempt from work for 15 days, dated 29 April 2003. On 30 December 2004 the other applicants came to Sweden and joined the first applicant’s request for asylum and residence permits. The second applicant stated that she had chosen to remain in Russia with the children when the first applicant left the country as she had considered that his problems did not concern them. However, in October 2004, the colonel had come to their home and had threatened her and had searched their home and, a few days later, three men had come to their home and had assaulted her. The men had said that they had been sent by the colonel. The second applicant claimed that she and the children had received more threats, by telephone calls and anonymous letters, and had therefore also decided to leave the country. Because of the assault, she was suffering from anxiety and depression. The children were also heard by the Migration Board and they stated that they felt fine, that they had not had any problems in their home country and that they did not know why they had come to Sweden. On 9 May 2006 the Migration Board rejected the applicants’ request. It found that the family’s problems emanated from individual persons and not from the Russian authorities and that the family therefore should have exhausted all means to seek protection from the authorities against the aggressors. As they had failed to do so, they had not shown that they were in need of protection in Sweden. The Board found no other grounds on which to grant the family leave to remain in Sweden, even having regard to the fact that the case involved two children. The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that the first applicant had reported the smuggling to several authorities within the military in his section and region. A review of the weapons in the unit, carried out on the basis of his report, had not shown any irregularities but he had been threatened with court martial for slander. Consequently, since his reports had led to nothing except threats against himself and his family, it was clear that the authorities protected each other and that the applicants could not count on help or protection from the Russian authorities. Moreover, the first applicant alleged that he had also received several summonses to appear before the police. These had been sent to his address in Russia, proving that some persons were still looking for him and that the family would not be safe in Russia. He submitted three summonses in which he was called to appear before the police on 6 April 2005, 26 April 2005 and 16 December 2005, respectively. He stated that these had been sent to him by the second applicant’s sister in Russia. The second applicant also submitted a medical certificate, dated 9 January 2008, by A. Braun, psychologist, and T. Wågberg, psychiatrist and chief physician, at the Psychiatric Clinic in Sundsvall. The certificate stated that the second applicant was suffering from Post Traumatic Stress Disorder (PTSD) following an assault in October 2004. She was taking antidepressants and consulted a psychologist on a regular basis which had improved her condition. It further noted that she was doing an internship at a hospital as a paediatrician (her profession in Russia) which was going well. On 29 May 2008 the Migration Court rejected the appeal. It first seriously questioned the authenticity of the summonses invoked as they were only copies and lacked a case number. Moreover, one stated that the first applicant was called as a witness and the others did not state why he was called. None of the summonses mentioned that he was suspected of having committed any crime. Furthermore, the court observed that the family had not reported the threats to the authorities and that the second applicant had not reported the assault. Thus, they had not made probable that the Russian authorities neither could nor would help or protect them against those individuals threatening them. Consequently, the court concluded that the applicants were not in need of protection in Sweden. Moreover, it considered that the second applicant’Sweden. Upon further appeal, the Migration Court of Appeal (Migrationsöverdomstolen), on 24 September 2008, refused leave to appeal. The applicants were then called to a meeting with the Migration Board on 23 October 2008 to prepare for their return to Russia. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define 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. Chapter 5, Section 1, of the 2005 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. According to Chapter 4, Section 1, of the 2005 Act, 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. 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, of the 2005 Act). 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 of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit. 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, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act). Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean 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. If a residence permit cannot be granted under this provision, 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, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act). Under the 2005 Act, 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 (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). According to Article 27 of the Constitution of the Russian Federation of 12 December 1993 everyone lawfully within the territory of the Russian Federation has the right to move freely and choose his or her place of stay or residence. Moreover, the Law on the right of Russian citizens to liberty of movement and freedom to choose the place of temporary and permanent residence within the Russian Federation (no. 5242-I, adopted on 25 June 1993, hereafter “the 1993 Law”) guarantees the right for Russian citizens to liberty of movement and freedom to choose their place of residence but requires a person to apply for residence registration at a new address within seven days of moving (Sections 1, 3 and 7). This is done by submitting an identity document, an application form and a document showing the legal basis for residence at the indicated address, such as a rent contract or the consent of the flat-owner (Section 9 of the Regulations for registration of temporary and permanent residence of Russian citizens, no. 713, of 17 July 1995). For more details, please, see Tatishvili v. Russia (no. 1509/02, §§ 29-31, ECHR 2007...). Furthermore, Section 31 of the 1993 Law stipulates that cancellation of a registration at a previous place of residence is carried out by the relevant bodies, either upon a citizen’s application for a registration at a new place of residence or upon his application for cancellation of registration at the previous place of residence. If by the time of registration at a new place of residence, he or she has not cancelled the registration at the previous place of residence, the registration authority (at the new place of residence) is under an obligation to notify, within three days, the registration authority at the person’s previous place of residence so that it can be cancelled.