RRUSTEMAJ v. SWEDEN
Inadmissible
The applicants, Mr A. Rrustemaj, Mrs S. Tiku Rrustemaj and their three daughters are nationals of Serbia and Montenegro, and were born in 1970, 1975, 1999, 2000 and 2002 respectively. They are currently in Sweden. They were represented before the Court by Mr M. Ekelöf, a lawyer practising in Växjö. The applicants are ethnic Albanians from the province of Kosovo in Serbia and Montenegro. In 1991 the first applicant travelled to Sweden and applied for asylum. This request was refused and he was deported to Kosovo in December 1992. On 5 September 1997 the first applicant again came to Sweden and, on 6 October 1997, he submitted an application for asylum and a residence permit to the Migration Board (Migrationsverket). On 6 February 1998 the second applicant joined her husband in Sweden and, three days later, she also joined his application for asylum and a residence permit. Before the Migration Board, they stated that, upon arrival in his home country in 1992, the first applicant had been detained a few hours by the border police and had been instructed to report to the police in Pristina. He had done so with the result that he had been detained there for ten days and questioned about the activities of Albanians in Sweden. Roughly two months later, the police had showed up at his home and had questioned him and all the members of his family about the activities of Albanians in the neighbourhood. Subsequently, the police had on repeated occasions passed by the applicants’ home and questioned the first applicant. In 1997 he had been contacted by a lawyer who had informed him that he was suspected of having connections with the UÇK (Ushtria Çlirimtare Kombetare – the Kosovo Liberation Army). Although the police had never accused him of this, the first applicant had decided to return to Sweden to avoid more problems. In December 1997 the police had come to the applicants’ home and had asked the second applicant about her husband’s whereabouts. They had, again, showed up in January 1998 at which time they had taken the second applicant to the police station and questioned her. She had been released after a few hours but the police had threatened to imprison her if her husband did not show up within ten days. For these reasons, the second applicant had travelled illegally to Sweden. On 14 May 1998 the Migration Board refused the applicants’ request for asylum. It considered that the harassment of which they had been the victims in their home country had been of a general character but not of a serious kind, and that they had not shown that they would be of special interest to the national authorities if they were to be returned to Kosovo. Thus, they could not be granted asylum. Moreover, the applicants had presented no grounds on which they could be granted residence permits on humanitarian grounds. The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), adding to their claims that, due to the deteriorating situation in Kosovo, it would be impossible to enforce the deportation order against them. On 28 June 1999 the Aliens Appeals Board granted the applicants temporary residence permits for a period of eleven months, as of the date of the decision, due to the very unstable situation in Kosovo at that time. Upon the expiry of their temporary residence permits, the applicants renewed their request for asylum and residence permits to stay in Sweden. On 6 September 2001 the Migration Board rejected the request and, on 2 April 2002, the Aliens Appeals Board upheld the Migration Board’s decision in full and ordered the applicants to leave Sweden within two weeks from the date of the decision. To avoid having to return to Kosovo, the applicants travelled to Norway and applied for asylum there. However, in accordance with the Dublin Convention, they were sent back to Sweden in December 2002 and, once again, lodged a new application for asylum and residence permits with the Migration Board. They stated that there was nothing left for them to return to in Kosovo as they would have nowhere to live and unemployment was very high. Moreover, they claimed that since they had not been in Kosovo since 1997/98 and their three children were born in Sweden, it would be inhuman to send them back. Furthermore, the second applicant was depressed and anxious, and she received medication for these problems. On 7 August 2003 the Migration Board rejected the application. It first noted that the applicants had only invoked humanitarian grounds and they had not claimed that they would risk persecution in their home country. Thus, the Migration Board found that they were not in need of protection in Sweden, and stated that they could not be granted residence permits only because their financial situation would be difficult in Kosovo. Moreover, it noted that the three children were very young and did not have a strong connection to Sweden and that the second applicant’s mental health was not so poor that the family could be granted leave to stay based on these grounds. The applicants appealed against the decision to the Aliens Appeals Board, maintaining their earlier claims and adding that the first applicant was in poor mental health, suffering from anxiety and depression, and the second applicant’s poor mental health had deteriorated further. On 19 April 2004 the Aliens Appeals Board upheld the Migration Board’s decision and reasoning in full and ordered the applicants to leave Sweden within two weeks from the date of the decision. The applicants remained illegally in Sweden and lodged a new application for residence permits with the Aliens Appeals Board, claiming that since they had been outside of Kosovo for almost seven years it would be inhuman to send them back, in particular since their children were born in Sweden. Thus, it would not be in the best interests of the children to deport them to a, for them, completely foreign country. Moreover, they alleged that the situation in Kosovo was unstable and that they were in need of protection in Sweden. On 1 June 2004 the Aliens Appeals Board rejected the application. It first observed that it had already considered the applicants claims in its earlier decision and found no reason to change it. Moreover, it stressed that it was the applicants’ own choice to have been away from Kosovo for so many years since, in spite of several negative decisions from the Swedish immigration authorities, they had remained illegally in Sweden. The applicants lodged yet another new application for residence permits on humanitarian grounds, relying on the second applicant’s deteriorating mental health. She had been diagnosed as suffering from Post Traumatic Stress Disorder and depression, and she had entertained thoughts of committing suicide. On 16 November 2004 the Aliens Appeals Board also rejected this application, finding that the second applicant’ On 20 January 2005 the Aliens Appeals Board rejected yet another application lodged by the applicants as they had invoked no new circumstances. The applicants submitted two medical certificates. The first, dated 15 October 2004, had been issued by H.-G. Nilsson, a psychologist, and the second certificate, dated 5 February 2005, had been issued by P.O. Elfstrand, a chief physician. The certificates stated that the second applicant suffered from Post Traumatic Stress Disorder (PTSD) with recurring depressive instances, including suicidal thoughts, due to which she had been admitted to a psychiatric clinic on two occasions (the certificates did not specify the dates). Her poor mental health was the consequence of traumatic experiences in her home country and of the long, insecure waiting in Sweden. She was very afraid of returning to Kosovo. As concerned the three children, it was observed that they only knew life in Sweden and had integrated into Swedish society. However, they had developed aggressive behaviour, suffered from nightmares and were afraid of sudden noises. According to the certificates, a deportation to Kosovo, where the children had never been, could cause them to develop identity problems of a serious nature. No information was provided as to the first applicant’s state of health. On 5 March 2005 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of their deportation to the province of Kosovo in Serbia and Montenegro. On 15 March 2005 the President of the Section to which the case had been allocated decided to apply Rule 39. He further decided to request the Swedish Government to submit a recent, independent assessment of the physical and mental health of the second applicant. On 4 April 2005 the Government informed the Court that, on 16 March 2005, the Migration Board, following the Court’s request, had decided to stay the deportation of the applicants until further notice. On 17 May 2005 the Government provided the Court with a medical report concerning the second applicant, dated 29 April 2005, by Dr I. Sjödin, doctor in psychiatry and psychosomatics and chief physician at the psychiatric clinic of the University Hospital of Linköping. The report was based on the medical documents available in the case and on a personal examination of the second applicant by the physician. The report stated that the second applicant had suffered from anxiety and sleeplessness already in her home country and that her mental health had deteriorated in June 1999 when she had been informed that her father and brother had been found in a mass grave in Kosovo. It had triggered a panic attack and she had been committed to closed psychiatric care between 20 and 28 June 1999, diagnosed as suffering from an adjustment disorder. Following a rejection of one of their applications for asylum by the Aliens Appeals Board, she had had a crisis reaction and again been committed to closed psychiatric care between 6 and 9 April 2002. One month later, between 7 and 23 May 2002, she was again taken into care and treated for depression. Since then she had taken medication to treat her anxiety and sleeplessness and, periodically, anti-depressants. During the personal examination of the second applicant, she had told the physician that she and the children mostly lived with her sister-in-law and her family because the first and second applicants had problems in their relationship. Moreover, she had stated that she only had sporadic contact with the health services and that, from time to time, she would get suicidal thoughts but that she had to live for the sake of her children. According to the physician, the second applicant appeared tired and dejected but she showed no signs of being psychotic and had no physical health problems. He considered that she suffered from years of anxiety, depression and nightmares which emanated from traumatic experiences in her home country, together with the protracted insecurity of her present situation and her complicated relationship with her husband. Her depressive symptoms appeared to have become chronic but she did not show any suicidal tendencies. The physician found that the second applicant’s poor mental health was not so serious that, in itself, it could justify granting her leave to stay in Sweden on medical grounds. However, he considered that the family’s situation as a whole, and in particular the children’s vulnerability, had to be taken into account before deciding to deport them to their home country. He concluded that the second applicant’s state of health was not an impediment to the enforcement of the deportation order.