S.C.C. v. SWEDEN
Inadmissible
Gaukur Jörundsson;Josep Casadevall
The applicant is a Zambian national born in 1962. At present she resides at Spånga, Sweden. She is represented before the Court by Mr Peter Bergquist, a lawyer practising at Tyresö, Sweden. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant entered Sweden on 26 April 1990 with her husband, a first secretary at the Zambian Embassy in Stockholm, and their two children, born in 1988 and 1990. The applicant's two children from a previous marriage, born in 1982 and 1985, remained in Zambia. The applicant was granted a work permit for one year as from November 1992. On 30 December 1993 she applied for an extended work permit. She stated, inter alia, that she and her husband did not have a good marriage and that he assaulted her, that she had rented an apartment in Stockholm, and that she could not return to Zambia since she was afraid of her husband's relatives. In December 1993 the applicant's two children who had remained in Zambia were brought to Sweden. The applicant remained in Sweden until early 1994 when it appears she returned to Zambia in connection with her husband's end of work at the Embassy. On 17 March 1994 the National Immigration Board (Statens invandrarverk) rejected her above application for a work permit. The Board found that she had no connection to Sweden and that she had left the country. On 8 May 1996 the applicant, having returned to Sweden, applied for a work permit and a residence permit for one year as from August 1996. The investigations made by the National Immigration Board disclosed that she and her husband, together with the four children, had returned to Zambia in 1994 and that they had intended to divorce. However, her husband died before the divorce became final. The applicant stated that she had returned to Sweden in November 1994 in order to pay her debts and because she had been employed at a hotel in Stockholm. She also stated that she stayed in Sweden for economical reasons and that she wanted a residence and work permit limited to one year, after which time she intended to return to Zambia. On 9 January 1998 the National Immigration Board rejected the application and ordered the applicant's deportation to Zambia. The Board found that neither the applicant's previous stay in Sweden – as the wife of a diplomat – nor the alleged threats against her by her husband's relatives constituted grounds for granting her a residence permit. The Board also took into account that the applicant's children lived in Zambia. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). She now stated that she was infected with HIV and that she should be granted a residence permit on humanitarian grounds as the necessary medical care was not available in Zambia. She submitted two medical certificates issued on 2 February and 20 August 1998 according to which the applicant's HIV infection had been detected in 1995. She made regular visits to the hospital. It was planned to commence an anti-HIV treatment during the next year. As such treatment was complicated and required strict adherence it was further indicated that treatment could only commence if the applicant was given a long-term permit to reside in Sweden. On 10 November 1998 the Appeals Board upheld the Immigration Board's decision. Referring to a decision taken by the Swedish Government on 23 June 1994 (see below), the Appeals Board considered that the applicant's health status did not give reason to grant her a residence permit. The applicant made a new application for a residence permit. She submitted a medical certificate issued on 25 January 1999, according to which her state of health had deteriorated. As a consequence, the anti-HIV treatment previously envisaged had been initiated. She also submitted a certificate issued on 27 January 1999 maintaining that a deportation of the applicant would result in the termination of her HIV treatment, the consequences of which would be a faster process towards the AIDS stage and her supposed death. By a decision of 10 February 1999 the Appeals Board rejected the application stating, inter alia, that a new application has to be based on circumstances which have not previously been examined in the matter. The applicant lodged a new application with the Appeals Board on 19 February 1999. In addition to what she had previously stated, she now claimed that she lived with F.R., a Somalian citizen who had been given a permit to reside in Sweden in 1992. He had been suffering from an HIV infection for about ten years. Allegedly, they had met in the summer of 1995 and had been cohabiting since the summer of 1996. The applicant claimed that she had not previously referred to this relationship, since she was afraid that it would be held against her. She further stated that she did not intend to bring her children to Sweden in case she was granted a residence permit. Her brother, who allegedly had taken over the responsibility for her children, planned to send them to school in England. On 23 February 1999 the Appeals Board rejected the application. The Board noted, inter alia, that the applicant had not previously referred to her relationship with F.R. and considered that there were thus reasons to question the seriousness of the relationship. The Board did not find it obvious that the applicant would have been granted a residence permit on the ground of the alleged relationship, had she applied for it according to the main rule laid down in Chapter 2, Section 5 of the Aliens Act (see below). Furthermore, the Board found that it would not be contrary to requirements of humanity to execute the expulsion decision. On 5 March 1999, following the Court's indication to the Swedish Government that it was desirable that the applicant not be expelled to Zambia before 16 March 1999 (see below), the National Immigration Board stayed the applicant's deportation. The Board's decision is still in force. B. Relevant domestic law and practice The basic provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the 1989 Aliens Act (utlänningslagen, 1989:529). The Act also defines the conditions under which an alien can be expelled from the country, as well as procedures related to the enforcement of decisions under the Act. There are normally two instances that deal with matters concerning the right of aliens to enter and remain in Sweden; the National Immigration Board and the Aliens Appeals Board. In exceptional cases, the Government may determine whether or not an alien shall be allowed to remain in Sweden following a referral to the Government, by either Board, of an application for residence permit (Chapter 7, Section 11). Chapter 1, Section 4 of the Aliens Act provides that an alien staying in Sweden for more than three months shall have a residence permit. Such a permit may be issued, inter alia, to an alien who is married to or cohabiting with a person domiciled in Sweden or who has been granted a residence permit to settle in Sweden. A permit may also be issued to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). A permit to reside in Sweden shall, according to Chapter 2, Section 5, have been granted before entering the country. As a principal rule all applications made after the alien has entered the country shall be rejected. This does not apply, however, if, inter alia, the alien on humanitarian grounds should be allowed to settle in Sweden. With regard to diplomatic officials employed by foreign powers in Sweden, together with their families, the Act only applies to the extent prescribed by the Government (cf. Chapter 12, Section 2). It follows from the Aliens Ordinance (utlänningsförordningen, 1989:547) that diplomatic officials and their families are exempted from the requirement to hold a residence permit. As regards serious illness, this may in exceptional cases constitute humanitarian reasons for a residence permit on condition that it is a life-threatening illness for which no treatment can be provided in the alien's home country. Further, care or treatment in Sweden should lead to an improvement in the alien's condition or be life saving. Thus, the alien's condition should be so serious that he or she would be likely to die or his or her health would deteriorate considerably if he or she was to be sent home. These principles have been expressed and applied by the Government in a number of precedent rulings of 17 February 1994 concerning medical humanitarian reasons in general and in rulings of 23 June 1994 and 16 March 1995 concerning HIV infection as a reason for a residence permit. The Government also stated that the mere fact that treatment in Sweden is of a higher quality than in the alien's home country does not constitute grounds for granting a residence permit, nor are financial difficulties in getting the appropriate treatment in the receiving country a reason for granting such a permit. The National Board of Health and Welfare (Socialstyrelsen) stated in an opinion of 25 March 1994, enclosed in the Government's decisions of 23 June 1994 and referred to in the decision of 16 March 1995, that the fact that a person is diagnosed with HIV or AIDS should not alone and generally be decisive of the question of humanitarian grounds. Instead, the assessment should be founded on the alien's general state of health taking serious clinical symptoms into consideration. The Board concluded that it found no reason, in this respect, to make a difference between HIV infection and other diseases with a serious prognosis. Further, according to the Aliens Act, an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). An alien who is to be refused entry or expelled in accordance with a decision that has gained legal force may be granted a residence permit if he or she files a so-called new application based on circumstances which have not previously been examined in the case of refusal of entry or expulsion and if (i) the alien is entitled to a residence permit under Chapter 3, Section 4, or (ii) it would be contrary to requirements of humanity to execute the refusal-of-entry or expulsion decision (Chapter 2, Section 5 b). Also when it comes to enforcing a decision on refusal of entry or expulsion, regard is taken to the risk of 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 8, Section 1).