IMAMOVIC v. SWEDEN
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
The applicants, Mr Azem Imamovic (the first applicant) and Ms Sevleta Imamovic (the second applicant), are nationals of Bosnia and Herzegovina who were born in 1958 and 1959, respectively, and are currently in Sweden. They were represented before the Court by Mr M. Ekelöf, a lawyer practising in Växjö. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants arrived in Sweden for the first time in 2001 together with their two daughters, born in 1980 and 1984, respectively. They applied for asylum and submitted that they should be granted residence permits on humanitarian grounds. They claimed that they had fled from the war to Germany in September 1993. In 1998 they had returned and had been subjected to harassment by other villagers who had considered them traitors for fleeing. In addition, they claimed that the first applicant, who had run a small shop, had been harassed by the health department and other authorities. On 26 November 2001 the Migration Board (Migrationsverket) rejected the application and held that the alleged harassment did not constitute grounds for asylum. The Board also noted that the applicants had failed to seek assistance from the domestic authorities before leaving Bosnia and Herzegovina. The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden) which, on 23 October 2002, upheld the Migration Board’s decision in full. During 2002 and 2003, the applicants repeatedly applied to the Migration Board for re-examination of their case due to the continuous deterioration of their physical and mental health. All these motions were rejected both by the Migration Board and the Aliens Appeals Board. At some point during 2003 the applicants left Sweden and travelled to Finland and Norway to apply for asylum. However, they were transferred back in accordance with the Dublin Regulation. In December 2003 the applicants again applied for asylum. On 22 October 2004 the Migration Board rejected the application. The Aliens Appeals Board upheld the decision on 17 February 2005. On 4 October 2006 the applicants turned again to the Migration Board and applied for a re-examination of their case. They added that their family had spent almost five years in Sweden and that their oldest daughter and her children had been granted residence permits. They also referred to their deteriorating health, in particular the first applicant’s poor mental health and his suicidal tendencies. On 13 October 2006 the Migration Board decided to stay the enforcement of the deportation order until further notice. However, on 5 February 2007, the Board rejected the application and decided that the enforcement of the deportation order should proceed. Upon appeal, the Migration Court (Migrationsdomstolen) upheld the decision and, on 11 May 2007, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. The applicants were registered as missing on 21 August 2007 and the deportation order became time-barred on 17 February 2009. On 19 March 2009 the applicants applied for asylum again. They maintained their earlier story and added the following. The first applicant suffered from severe mental illness and had received voluntary psychiatric care. He had also been considered for mandatory psychiatric care in a closed ward. Furthermore, he suffered from a severe heart condition. He submitted eight medical certificates issued between 2006 and 2009 from four different psychiatric clinics. According to a certificate issued on 2 October 2009 by S.P., a psychologist at the Psychiatric Clinic in Mullsjö/Habo, the insulting treatment to which the first applicant and his family had been subjected in Bosnia and Herzegovina had caused him trauma and long lasting psychological harm. Due to this he suffered from memory loss, difficulties with sleeping and concentrating, moments of absence, anxiety attacks and a deep sense of depression. He had also developed hallucinations urging him to commit suicide. At one point he had tried to jump off a building, but had been stopped by a family member. He expressed fears of being left alone and not being able to resist the urge to commit suicide. This state was most probably aggravated by the uncertainty of his situation, not knowing whether he would be allowed to stay in Sweden or not. His physical health had also been affected by his mental illness and there were reasons to believe that this had been a factor causing him to suffer a heart attack in 2008. According to another medical certificate, issued on 8 October 2010 by I.P., senior physician and specialist in general medicine and general psychiatry at Ryhov hospital in Jönköping, the first applicant had tried to commit suicide on several occasions and could therefore never be left on his own. He suffered panic attacks, mostly at night, and therefore had trouble sleeping. In connection with the attacks, he had trouble communicating properly, even with his closest family. Heavy medication had not helped and his prognosis was considered negative. The second applicant suffered from diabetes and a skin disease. She submitted a medical certificate to this effect issued on 2 April 2009. On 10 December 2009 the Migration Board rejected the application. It observed that the applicants had not submitted any new information regarding their need for protection and thus there was no need for it to make a new evaluation. It further considered that the medical certificates regarding the first applicant did not clearly indicate his mental state or what kind of care he needed. The certificates only showed that he suffered from mental illness, but not that it was life threatening. Furthermore, the Board noted that country information showed that health care was available in Bosnia and Herzegovina. The applicants’ health problems were therefore not sufficient grounds to grant them asylum. Lastly, the Board noted that one of the applicants’ daughters had been granted a permanent residence permit in Sweden in 2004. However, it stressed that the general rule was that an application for residence permit on the grounds of family relations should be submitted before entering Sweden. The Board held that no exception to this rule was applicable in the present case. It was not unreasonable to expect the applicants to file such an application from Bosnia and Herzegovina. The applicants appealed against the decision and requested the Migration Court to hold an oral hearing where they could submit oral evidence as to their deteriorating health. On 9 March 2010 the Migration Court rejected the motion for an oral hearing and requested the applicants to submit further written observations. The applicants claimed that the Migration Board had not duly considered the fact that there was an imminent risk that the first applicant would commit suicide and that he was highly dependent on his older daughter for his mental well-being. They also added that the second applicant did not have the means or the ability to care of her husband alone if they were to return to Bosnia and Herzegovina. On 30 August 2010 the Migration Court, by a majority, upheld the Board’s decision. It noted that the applicants’ allegations of persecution had been assessed by the domestic authorities in Sweden on several occasions since they had first applied for asylum in 2001. Moreover, no new information had been submitted and therefore there was no reason to depart from the earlier assessments. Regarding the first applicant’s health, the court found that his mental and physical state was not severe enough to constitute a sufficient ground for asylum. The court observed that his mental illness seemed to have developed only after arriving in Sweden and also seemed to be connected to the pressure of going through the asylum proceedings. His state had not improved although he had received medication. In conclusion the court held that his illness was not life threatening and hence not serious enough to allow him to stay. Furthermore, it shared the Migration Board’s assessment that the applicants could reasonably be expected to apply for residence permits from their home country. The presiding judge gave a dissenting opinion and considered that the first applicant’s severe mental illness and his connection to his older daughter, who had a residence permit in Sweden, constituted sufficient grounds for allowing him and his wife to stay. The presiding judge also pointed out that several attempts to enforce the applicants’ deportation had failed, inter alia, due to the first applicant’s state of health and, consequently, nothing indicated that future enforcement attempts would be more successful. The applicants appealed to the Migration Court of Appeal. They submitted a new medical certificate issued on 15 September 2010 by S.P., in which the progression of the first applicant’s illness, his current state and acute suicidal tendencies were described in detail. The Migration Court of Appeal refused leave to appeal on 24 September 2010. In the meantime, on 19 June 2010, the Migration Board granted the applicants’ younger daughter, her husband and their two children residence permits in Sweden. On 1 October 2010 the applicants requested the Court to apply Rule 39 of the Rules of Court in order to stop their deportation to Bosnia and Herzegovina. On 28 October 2010 the President of the Section to which the case had been allocated granted the applicants’ request for interim measures until further notice. On the same day, the Migration Board, with reference to the Court’s decision, stayed the enforcement of the applicants’ deportation order until further notice. Subsequently, the applicants again applied for a re-examination of their case before the Migration Board, first on 8 February 2011 and then on 13 April 2011. However, both motions were rejected. Before the Court, the applicants submitted several medical certificates, issued between October 2010 and August 2011 by two different doctors, regarding the applicants’ state of health. As regards the first applicant, the certificates stated, inter alia, that he was suffering from post-traumatic stress disorder and that the practical enforcement of the deportation order could endanger his life since mental pressure would strongly increase the risk of an immediate heart attack. According to a medical certificate issued in June 2011, his health had further deteriorated. It also stated that the first applicant had not had any contact with psychiatric clinics before he came to Sweden. As regards the second applicant’s state of health, a certificate issued on 7 March 2011 was submitted. It stated that she suffered from diabetes and anxiety related to the deportation, which had caused her trouble sleeping and feelings of depression. 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). 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. Chapter 5, Section 1, of the Aliens 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 Aliens Act). 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 of the Aliens 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 granting a residence permit. 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 Aliens 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 Aliens Act). Under Chapter 5, Section 3 a, first paragraph, point 2 of the Aliens Act a residence permit may be given to an alien who is a close relative of someone who is resident in or who has been granted a residence permit to settle in Sweden, if he or she has been a member of the same household as that person and there exists a special relationship of dependence between the relatives that already existed in the country of origin. By virtue of Chapter 5, Section 18, of the Act, an alien who wants a residence permit in Sweden on account of family ties or serious relationships must have applied for and been granted such a permit before entering the country. An application for a residence permit may not, as a general rule, be approved after entry. However, exemptions from this rule can be made for example if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there (Chapter 5, Section 18, second paragraph, point 5). As regards this exemption, the preparatory works to the provision (Government Bill 1999/2000:43, p. 55 et seq.) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there. Relevant elements, which may be favourable for the alien, may be whether he or she can be expected, after returning home, to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin. It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions. It may also be relevant whether the alien has to return to a country where there is no Swedish foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there. Relevant elements, which may count against the alien, may be that he or she is staying in the country illegally, that their identity is unclear or if there are strong ties to the country of origin. An exemption may also be made if there are some other exceptional grounds (Chapter 5, Section 18, second paragraph, point 6). The requirement that, in principle, residence permits for family members have to be granted before entry into Sweden was introduced as one of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience. Subsequently, the Swedish Government and Parliament have underlined on several occasions that the requirement that residence permits be obtained before entry into Sweden is an important part of measures to maintain regulated immigration. Moreover, the preparatory works to the Aliens Act state that it is important that aliens staying in Sweden illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there (Government Bill 1999/2000:43). The Country of Origin Information Centre (Landinfo), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information has, in a note concerning health care in Bosnia and Herzegovina, dated 22 November 2010, observed that extensive reforms have been made in the health care sector. Among other things, centres for psychiatric health care have been built, offering specialist treatment for patients suffering from mental ill-health. Persons suffering from mental health problems can seek help either at the nearest centre for psychiatric health, or at the social services. Persons with serious mental health problems are referred to hospital or to a psychiatric ward at a central hospital. As for heart disease, most problems can be treated in the country and medication for unstable heart disease is available there. According to the European Commission’s Bosnia and Herzegovina 2010 progress report, published on 9 November 2010, there has been some progress in the area of mental health. The South-Eastern Europe Health Network accepted the application of the Bosnia and Herzegovina Ministry for Civil Affairs to set up the regional centre for cooperation and development in the area of mental health for South-Eastern Europe. The regional centre was operational. Both Entities adopted mental health strategies and new mental health centres were opened. However, establishment of community-based services, provision of aid to dependent persons and mental health care for children and young people needed further attention. According to the European Commission’s Bosnia and Herzegovina 2011 progress report, published on 12 October 2011, progress was reported in the area of mental health. The country amended the Law on Protection of Persons with Mental Disorders, improving the protection of human rights and dignity of persons with mental disorders as well as the legal protection of legally incapacitated adults. The Regional Health Development Centre for Mental Health in South- Eastern Europe in Sarajevo became operational. However, further actions remained to be taken towards promoting inclusion of people with mental health problems and their empowerment. Community-based mental health services of high quality that focused on recovery needed further support.