J.M. v. SWEDEN
Inadmissible
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant is a Rwandan national who has born in 1978. She is currently in Sweden. She is represented by Mr P. A. Hultman, residing in Grebbestad. 2. 3. On 20 October 2008, the applicant applied for asylum and a residence permit in Sweden. She was provided with legal counsel to represent her during the asylum proceedings. Before the Migration Board (Migrationsverket), she claimed the following. She originated from Kigali. In 1996, her family had disappeared after being arrested by the police. In August 2008, she had been requested by two men to testify against her neighbour in a Gacaca trial (see below paragraph 28). The men had told her what to say before the court. She had not known her neighbour or of what crime he had been accused. The general public had received a lot of information about the Gacaca court proceedings. According to the law, all villagers had to attend the trials. There had been approximately a hundred persons at the trial in question. Just when she had raised her hand to testify it had started to rain, and the trial had been discontinued. She had therefore not testified. However, everyone present had seen her and observed that she had not testified. Three other persons had testified against the neighbour and she had no information about what had happened to him later. The following day she had been arrested and imprisoned by the local police. She had been repeatedly raped and ill-treated while in detention. In her view, the ill-treatment had been a way to force her to testify. When she had promised to do so, she had been released. Shortly thereafter she had been summoned. She had gone into hiding and with the help of a priest she had managed to leave the country. She would risk being killed by the local authorities or by the police if returned since she had refused to commit perjury. The applicant submitted a copy of her identity card and a summons issued by the local police station to substantiate her claims. 4. On 28 May 2009, the Migration Board rejected the application. It found that the identity card produced was insufficient to substantiate the applicant’s identity. However, the Board found that she, through her asylum story, had made it plausible that she originated from Rwanda. Turning to the documentary evidence, the Board found that the submitted summons was of simple quality and thus had low evidential value. Further, the Board found the asylum story vague and lacking in detail. For example, the applicant had not known why she had been requested to testify, who the accused person was, who the other witnesses were or if witnesses were usually summoned in these types of proceedings. Further, she had not known what punishment she risked for not testifying. The Board found it remarkable that the asylum story was so vague, given that the applicant had stated that the general public had received a lot of information about these trials before they were initiated and that she had attended several trials previously. Further, the Board found that the asylum story was inconsistent with relevant country information, which suggested that participation in the proceedings was voluntary. Consequently, the Board found that the applicant had failed to make plausible that she risked persecution or ill-treatment if returned. 5. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining her claims. 6. On 2 July 2010, the Migration Court, after having held an oral hearing, rejected the appeal. It agreed with the Board that the asylum story was vague and lacked credibility. In any event it noted that, according to country information, the majority of the Gacaca court proceedings had been terminated and that although there had been problems of threats and violence against witnesses, essentially taking place locally, there existed a certain witness protection and the authorities investigated and indicted such crimes committed by private actors. Consequently, the court found that the applicant had failed to exhaust the possibilities of obtaining domestic protection. 7. On 23 September 2010, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. Hence, the expulsion order became enforceable. 8. In November 2010, the applicant claimed that there were impediments to enforcement of the deportation order for medical reasons and on grounds of family ties to her cohabiting partner, X, as well as the general security situation and severe living conditions in her home country. 9. On 20 November 2010, the Migration Board rejected the request since no reasons had emerged to deviate from the general rule that a residence permit, based on family ties, should be lodged with the Swedish authorities abroad. This was in particular so when the family ties had been established after a final decision on expulsion had been rendered. Further, it found that the applicant had not raised any new circumstances in the case. 10. Another request for re-examination of the case, on the basis of circumstances already mentioned and the general situation in Rwanda, was rejected by the Migration Board on 17 January 2011. 11. Thereafter the Migration Board was informed that the applicant had travelled to Belgium and, on 8 July 2011, she was registered as having left Sweden. On 21 September 2011, the applicant re-entered Sweden. 12. In January 2012, the applicant again requested a stay on removal to her home country and a re-examination of the case, relying on family ties to X and their son, Y, who had been born in October 2011. The applicant submitted a copy of the paternity certificate to the Board. 13. On 28 January 2012, the Migration Board rejected the request. It pointed out that the applicant had not produced a passport and thus had failed to prove her identity. It followed already from that that she did not fulfil one of the basic requirements to be granted a temporary residence permit in Sweden. The Board also noted that, since 23 September 2010 when the decision to reject her asylum application became final, the applicant had no legal right to stay in Sweden. Consequently, it found no reason to deviate from its previous position. 14. The applicant again requested a stay of removal and a reexamination of the case based on family ties to X and Y, and submitted, inter alia, a decision from the Swedish Tax Authority. 15. On 7 July 2012, the Migration Board rejected the application. It reiterated that the applicant had not submitted a passport to the Swedish authorities to prove her identity and fulfil one of the basic requirements to be granted a temporary residence permit. It further considered that she had failed to make plausible that she had strong family ties to X and Y. The circumstance that X was her cohabiting partner and that they had Y together led to no other conclusion. Thus, it found that the applicant had not fulfilled the basic requirements for a residence permit. 16. The applicant then made yet another request for re-examination and stated that it would be in violation of the UN Convention on the Rights of the Child, applicable EU directives and the Migration Board’s own regulations, if she were forced to return to her home country, and consequently separated from her child, in order to submit her application from there. 17. On 25 May 2013, the Migration Board rejected also this request on the same grounds as its previous decisions. 18. Upon appeal, the Migration Court, on 5 June 2013, upheld the Board’s decision in full and considered that the applicant had not invoked any new circumstances. 19. On 2 July 2013, the Migration Court of Appeal refused leave to appeal. 20. In October 2003, X applied for asylum and a residence permit in Sweden. Before the Migration Board he stated that he was Rwandan of Hutu ethnicity and had been involved in the 2003 presidential election campaign, responsible for youth activities in his municipality, and had arranged illicit meetings which had come to the authorities’ attention. 21. On 20 March 2006, the Migration Board rejected the application. It found no reason to question X’s claim of political activity in connection to the election but considered that he had merely been politically active at a low level and it was thus unlikely that the authorities would have any interest in him. 23. On 17 January 2012, Y applied for asylum and a residence permit on the grounds that he risked persecution in Rwanda, with reference to the applicant’s and X’s asylum claims. Furthermore, family ties to X were relied on. Supporting documents, inter alia, a copy of the paternity investigation and certificates were submitted to the Board. 24. On 13 April 2012, the Migration Board granted Y refugee status, a permanent residence permit and travel documents, valid in relation to all countries except Rwanda for the period 2012 to 2017. The Board noted that it was undisputed in the case that X was the father of Y. Since X had been granted a residence permit in Sweden as a refugee this should also apply to Y, in accordance with the principle of family unity. 25. 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 2005 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. See Imamovic v. Sweden ([dec.], no. 57633/10, 13 November 2012) for a substantive account of the relevant provisions of this Act. 26. On 1 July 2010 Chapter 5, section 18, was amended by the following addition: “When assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden.” According to the preparatory works, this means that the alien should fulfil all requirements for a residence permit such as, inter alia, holding a valid passport, verified identity and strong family ties (Government Bill 2009/10:137, p. 17). 27. Chapter 12, section 18, was also amended on 1 July 2010 by the following addition: “When assessing under the first paragraph, point 3, if there is another special reason for a decision not to be executed, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted ... if the application had been examined before entry into Sweden.” 28. According to Human Rights Watch, World report 2013 –Rwanda, the community-based Gacaca courts, set up to try cases related to the 1994 genocide, closed in June 2012. Moreover, the trial of Jean Bosco Uwinkindi, the first case transferred to Rwanda by the International Criminal Tribunal for Rwanda (ICTR), opened in Kigali. The ICTR has agreed to transfer seven other cases to Rwanda. Human Rights Watch also noted that Rwanda had made important economic and development gains but that the government had continued to impose tight restrictions on freedom of expression and association. Opposition parties were unable to operate.