CASE OF J.K. AND OTHERS v. SWEDEN
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq)
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
6. The applicants, a married couple and their son, were born in 1964, 1965 and 2000, respectively. Their religious affiliation is unknown. 7. On 14 December 2010, the applicant husband applied for asylum and a residence permit in Sweden. On 11 July 2011, his application was dismissed since he was registered as having left the country. 8. On 25 August 2011, the applicant husband applied anew for asylum and a residence permit in Sweden, as did the other applicants on 19 September 2011. 9. Before the Migration Board (Migrationsverket), all the applicants were heard in an introductory interview on 26 September 2011. Subsequently, the adult applicants were heard anew during a longer interview, which took place on 11 October 2011 and lasted almost three and a half hours. The applicant son was interviewed briefly for a second time and the applicant husband was interviewed a third time. The applicants were assisted by appointed counsel. 10. The applicants maintained that upon return to Iraq they risked persecution by al-Qaeda and that the applicant husband appeared on their death list. The applicants had been brought up in Baghdad. Since the 1990s the applicant husband had run his own business exclusively with American clients and had had his office at the American base “Victoria Camp”. Several of his employees had on occasion been warned not to cooperate with the Americans. 11. On 26 October 2004, the applicant husband had been the target of a murder attempt carried out by al-Qaeda. He had had to stay in hospital for three months. There, unknown men had asked for him, after which he was treated in three different hospitals. 12. In 2005, his brother had been kidnapped by al-Qaeda who had claimed that they would kill him due to the applicant’s collaboration with the Americans. His brother had been released through bribes a few days later and had immediately fled from Iraq. The applicants had fled to Jordan and stayed there until December 2006, before returning to Iraq. 13. Soon thereafter, alQaeda members had placed a bomb next to their house. However, it had been detected by the applicant wife, and the Americans had arrested the perpetrator. During interrogations, the perpetrator had confessed that he had been paid by al-Qaeda to kill the applicant husband and had disclosed the names of 16 persons who had been designated to watch the applicants. Thereafter, the applicants had moved to Syria although the applicant husband had continued his business in Iraq. During this time, al-Qaeda had destroyed their home and their business stocks. 14. In January 2008, the applicants had returned to Baghdad. In October the same year, the applicant husband and his daughter had been shot at when driving. The daughter had been taken to a hospital where she had died. The applicant husband had then stopped working and the family had started to move around in Baghdad. The business stocks had been attacked four or five times by al-Qaeda members, who had threatened the guards. The applicant husband stated that he had not received any personal threats since 2008, as the family was moving around. The applicant son had spent most of his time indoors for fear of attacks and had only attended school for the final exams. They had never sought protection from the domestic authorities as they lack ability to protect the family and for fear of disclosing their address, knowing that al-Qaeda collaborated with the authorities. The applicant husband still had an open and infected wound on his stomach where he was shot in 2004. The applicant wife had cysts on her liver and in her uterus. They submitted several documents, including identity papers, a death certificate for the applicants’ daughter and a medical certificate for the applicant husband’s injury. 15. On 22 November 2011, the Migration Board rejected the application. It found that all of the applicants had proved their identity and that their asylum story was credible. However, the Board noted that the applicant husband had ended his collaboration with the Americans in 2008 and that, thereafter, he had stayed in Baghdad for two years without being victim of any attacks except for the ongoing threats against his work stocks. Moreover, the applicant couple had three daughters who still lived in Baghdad and who were not harassed. The Board acknowledged that the applicants had been the victims of severe violence and harassment but observed that they had not sought any protection from the domestic authorities in Baghdad. Although it was true that al-Qaeda had infiltrated the domestic authorities, this had to a great extent diminished. Therefore, the Board concluded that the applicants had not made probable that they would be unable to seek the domestic authorities’ protection. Furthermore, the applicants’ state of health was not poor enough to grant them asylum. Consequently, there were no grounds on which to grant the applicants asylum or residence permits in Sweden. 16. The applicants appealed to the Migration Court (Migrationsdomstolen) and maintained that the Iraqi authorities had been and would be unable to protect them. They had contacted the police following the fire at their home and business stock in 2006 and 2008 and the murder of their daughter in 2008, but thereafter they had not dared to contact the authorities due to the risk of disclosing their residence. Together with their written submissions, they enclosed a written translated testimony attestation allegedly from a neighbour in Baghdad, who stated that a masked terrorist group had come looking for the applicant husband on 10 September 2011 at 10 p.m. and that the neighbour had told them that the applicants had moved to an unknown place. The neighbour also stated that, just after the incident, the applicant husband had called him and been told about the incident. The applicants also submitted a translated residence certificate/police report allegedly certifying that the applicants’ house had been burned down by a terrorist group on 12 November 2011. Furthermore, the applicants submitted a recording of a public debate on TV concerning the corruption and infiltration of al-Qaeda members within the Iraqi administration. The applicants mentioned in that connection that the applicant husband had participated in the public debate, which was broadcast on the Alhurra Channel in Iraq on 12 February 2008, thus four years earlier. Finally, submitting various medical certificates, the applicants contended that the applicant husband’s health had deteriorated and that he could not obtain adequate hospital care in Iraq. Before the Migration Court the Migration Board was heard. It stated, among other things, that the documents submitted concerning the alleged incidents on 10 September and 12 November 2011 were of a simple nature and low value as evidence. 17. On 23 April 2012, the Migration Court upheld the Migration Board’s decision. The court stated that the criminal acts of al-Qaeda had been committed several years before and that the applicant husband no longer had any business with the Americans. In the event that a threat still remained against the applicants, the court found it probable that the Iraqi authorities had the will and the capacity to protect them. Finally, referring to the applicants’ health, the court noted that these could not be seen as exceptionally distressing circumstances. In view of the above, there were no grounds on which to grant the applicants asylum or residence permits in Sweden. 18. The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen). Their request for leave to appeal was refused on 9 August 2012. 19. On 29 August 2012 the applicants submitted an application to the Migration Board for a re-examination of their case. They maintained that the applicant husband was under threat from al-Qaeda because he had been politically active. They enclosed a video showing the applicant husband being interviewed in English, a video showing a demonstration, and a video showing a TV debate. The applicants’ request was refused on 26 September 2012. The applicants did not appeal against the decision to the Migration Court.