GONCHAROVA AND ALEKSEYTSEV  v. SWEDEN
Inadmissible
David Thór Björgvinsson
The applicants, Ms Zinaida Ivanovna Goncharova and her son Mr Artem Alekseytsev, are Russian nationals who were born in 1955 and 1986 respectively and are currently in Sweden. On 31 August 2002 the applicants (together with S., the husband/father of the applicants) arrived in Sweden from Russia and, on the following day, they applied to the Migration Board (Migrationsverket) for asylum and residence permits. The first applicant stated that she was a trained engineer and had worked at a construction site in Siberia where she had met S. who also worked there. In 1998 the family had moved to Kaliningrad, where they had lived until the departure to Sweden. According to the applicants, the first applicant had been working as an election administrator during the mayor’s election in 1994 and had revealed irregularities, for which reason she had been dismissed from work. Following this, the authorities had harassed the family in different ways, inter alia, by creating administrative problems for them (their apartment had not been repaired, they had been prohibited from using electrical appliances in their home, their telephone had been cut off and they had not received proper medical care). The first applicant had complained about their problems to the authorities, the Duma and the President but the only result had been that the local authorities had threatened them and had told the first applicant to stop complaining. In 1999 the applicants had been assaulted and battered by unknown men; they strongly suspected that the authorities were responsible. The second applicant had been granted 1,500 roubles in compensation for the battering but he had only received 500 roubles. He alleged that the persons who had battered him had told him that his mother should stop complaining. He still suffered from headaches and problems with his heart. The second applicant further stated that he feared being drafted for military service and being sent to Chechnya, where several of his friends had died. On 12 May 2003 the Migration Board rejected the family’s application for asylum and residence permits. It found that the difficulties which the family had endured in their home country could neither be classified as persecution nor be considered serious enough to grant the family residence permits on humanitarian grounds. With regard to the second applicant’s fear of being drafted for military service, the Board observed that this was not a ground on which he could be granted leave to stay in Sweden. The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining their claims and adding a number of examples of how the family had been treated unjustly by the authorities because of the first applicant’s complaints to them. The applicants had, inter alia, not been given a proper apartment to live in and had also been refused housing benefits from the State. The first applicant further alleged that she had been threatened and harassed in Sweden because she had reported a person for drug abuse. She stated that she could take no more and that both she and S. were receiving psychiatric help following an attempt by S. to hang himself. The second applicant claimed that he suffered from recurring headaches. On 24 February 2004 the Aliens Appeals Board rejected the appeal, sharing the Migration Board’s reasoning and conclusion. It further found that the applicants’ mental health problems were not of such a serious nature that they could be granted residence permits on humanitarian grounds. The applicants then lodged a new application for residence permits, relying on the same grounds as before and adding that the Swedish authorities had not examined their application properly. The first applicant claimed that her life would be in danger if she were forced to return to Russia, since they had been denied all civil and human rights there. Moreover, she had written more letters to the Russian President and the State Prosecutor which had led to her sister being harassed by Government representatives and local authorities in Kaliningrad. The sister had been asked questions about the whereabouts of the first applicant and threatened. On 22 April 2004 the Aliens Appeals Board rejected the new application. It observed that it had already considered the applicants’ claims in its earlier decision and found no reason to change it. In reaching this conclusion, it had regard to the additional submissions made by the applicants. The applicants lodged another new application with the Aliens Appeals Board, adding to their earlier claims that the second applicant would face a real risk of being bullied if, upon return, he had to do his military service. Due to the family’s very difficult situation, he had tried to commit suicide in August 2004 and the personnel at the hospital had had to watch over him 24 hours a day. He had remained in psychiatric care as an in-patient on a voluntary basis for three weeks. They submitted several medical certificates concerning the entire family. On 21 September 2004 the Aliens Appeals Board also rejected this application, noting that the second applicant did not suffer from a serious mental disorder but that his poor mental health was due to the family’s stressful and insecure living situation. It therefore concluded that neither his nor his parents’ mental health was so poor that the family could be granted leave to stay in Sweden On 5 November 2004 the applicants were deported to Kaliningrad. On 10 December 2004 the second applicant returned to Sweden and his girlfriend’s mother let him stay with them. However, he did not apply for asylum and a residence permit until 22 April 2005. Before the Migration Board, he claimed that he and his parents had been detained by the police for two days upon return to Russia and that he had been beaten with batons. When they had returned to their home town, Sovetsk, he had once been attacked by three unknown persons at the entrance to their apartment building. His mother had also been threatened on the phone by unknown persons. It had been impossible for him to live in Russia because of all the threats against him and his parents. If he had to return, he would not be able to study, get a job or have access to health care. Moreover, he alleged that he had been called to do his military service and that, since he had left the country, he was considered a deserter and would risk a long prison sentence. The second applicant further stated that he was depressed and feeling unwell, for which he was seeing a counsellor. Lastly, he invoked his relationship with his Swedish girlfriend (born in July 1990) and the fact that he lived with her and her family. They had met in January 2004 and been together since then. On 11 November 2005 the Migration Board rejected the application. It first noted that the second applicant could not be granted asylum because he had evaded military service and it found nothing to suggest that he would receive a disproportionate sentence if he was tried and convicted of desertion. The Board then considered that it was for the Russian authorities to deal with threats and violence from unknown persons and that the second applicant had failed to show that the Russian authorities neither could nor would help him. Moreover, he could not be granted leave to stay either based on reasons of a social/economic nature or based on his alleged poor health. Lastly, the Board noted that the second applicant’s girlfriend was only 15 years old and that it was normally required that both persons in a relationship were adults (over 18 years old) for the Board to consider granting a residence permit based on a close relationship. In any event, it observed that the second applicant could apply for a residence permit based on the relationship from Russia, as was the normal procedure. The second applicant appealed to the Aliens Appeals Board, relying on the same grounds as before and adding that it would be inhumane to send him back. On 23 February 2006 the Aliens Appeals Board upheld the Migration Board’s decision in full. The Migration Board then carried out a new examination of the second applicant’s case under the interim amendments to the Aliens Act in force at the time. The second applicant submitted that he should be allowed to stay in Sweden since he had been in the country for a long time and had developed strong ties to Swedish society. In this respect, he referred to his girlfriend with whose family he lived, that to the fact that he was playing in a local football club and that he had been promised a job if he got a residence permit. He further stated that it would be devastating to his mental health and development if his medical treatment was interrupted. Lastly, he claimed that the Russian military authorities were looking for him because he had not yet done his military service. On 22 June 2006 the Migration Board decided that he could not be granted leave to stay in Sweden based on the interim amendments to the Aliens Act. It considered that the second applicant had not been in Sweden for such a long time that he had established strong ties to Swedish society. Moreover, his medical condition was not so serious that he could be granted leave to stay on this ground and he should have applied for a residence permit on the basis of his relationship with his girlfriend before having entered Sweden. The Board concluded that the second applicant had not invoked any new circumstances which had not already been considered by itself or the Aliens Appeals Board and that there were no reasons to depart from their earlier conclusions. This decision could not be appealed against. During the spring of 2006 the first applicant returned to Sweden and renewed her application for asylum and a residence permit. This application is still pending before the Migration Board. It would seem that S. remains in Kaliningrad. According to medical certificates, dated 27 May 2004, 30 August 2004 and 14 October 2004, written by M. Hansson, counsellor, O. Elmgren, resident doctor, and E. Erenius, chief physician and specialist in psychiatry, at the child and youth psychiatric unit at Karlshamn hospital, the second applicant had been in contact with the unit since the end of October 2003. He had contacted them for problems with recurring headaches which he claimed had been caused by the battering in Russia and for which he had also seen a neurologist in Kaliningrad. The second applicant had been very afraid, anxious and stressed by the thought of being deported and had preferred to be with his friends, playing football, instead of being at home. His insecure living situation had deeply affected him and, on 16 August 2004, he had tried to commit suicide by taking an overdose of pills. He had been hospitalised and, initially, kept under surveillance. He had left the hospital at the beginning of September 2004 but had been hospitalised again on 23 September 2004, following another rejection by the Aliens Appeals Board. Apparently, he had threatened to kill himself using a knife but his mother had intervened. This time he had remained at the hospital for four weeks, diagnosed as suffering from severe depression and post-traumatic stress disorder (PTSD) caused by various traumas over many years. After his return to Sweden, in December 2004, he had contacted the psychiatric unit at the hospital. He had begun to have regular contact with his counsellor, M. Hansson, who, in a medical certificate dated 12 July 2006, stated that, on 8 July 2006, he had tried to commit suicide by taking pills, following a rejection of his application for asylum by the Migration Board. He had been urgently hospitalised as he had lost consciousness. He had been disappointed that the suicide attempt had failed but had been released from hospital after a few days when the treating physician considered that he was no longer suicidal. The counsellor concluded that the second applicant was in great need of care and treatment to deal with his situation and the trauma of having been an asylum seeker for many years without any stability in his life. There was a risk that his mental health had been seriously damaged which could lead to him developing a serious mental disorder. The last medical certificate, dated 11 September 2006, was written by O. Elmgren and stated that the second applicant suffered greatly from his insecure situation and had lost faith in the future. The doctor considered that the second applicant was on the verge of a serious mental crisis and that there was a clear risk of suicide. On 4 August 2006 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 Russia. On 9 August 2006 the President of the Second Section decided to apply Rule 39. He further decided to request the Swedish Government to provide information on the second applicant’s current mental health and whether it would be an impediment to his deportation. On 9 November 2006 the Government informed the Court that, on 11 August 2006, the Migration Board, following the Court’s request, had decided to stay the deportation of the second applicant until further notice. However, since the first applicant’s application for asylum and a residence permit was still pending before the Migration Board, no enforceable deportation decision existed against her which could be suspended. As concerned the second applicant’s mental health and the possibility to deport him, the Government submitted that, based on the medical evidence available, his poor mental health related primarily to his uncertain situation as an asylum seeker in Sweden and the prospect of being expelled. In this respect, they noted that both his suicide attempts had been directly linked to decisions to reject his asylum applications or preparations to enforce the deportation orders. Moreover, the care offered by the psychiatric unit had focused on ways for the second applicant to cope with his situation and to support him. The diagnosis from 2004 that he suffered from PTSD and severe depression had not been repeated and, in the Government’s view, there was nothing to support such a diagnosis at the present time. On the contrary, they observed that he had only met with the counsellor three times between January and July 2006. In any event, they found nothing in the medical evidence available to substantiate that his current state of health was so poor that he could be considered to be suffering from a serious mental disturbance. In these circumstances, and referring to the Court’s case-law, the Government considered that there were no impediments to deporting the second applicant to his home country. They also expressed their confidence that a deportation would be carried out in such a manner as to minimise the suffering of the second applicant, taking into account his medical condition. The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was replaced, on 31 March 2006, by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 and 2005 Acts 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 1, Section 4 of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the grant of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country. Further, according to the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had 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 3, Section 3). An alien who was to be refused entry, deported or expelled, in accordance with a decision that had gained legal force, could be granted a residence permit if he or she filed a new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7). As regards the enforcement of a refusal of entry, deportation or expulsion, account had 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 could not be sent to a country where there were 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). In essence, the 2005 Act did not substantially amend the above provisions, except for the following. By the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to renew applications but, instead, the Migration Board shall, on its own initiative, determine whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18). Furthermore, between 15 November 2005 and 30 March 2006, certain interim amendments to the 1989 Act were in force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children.