GASHI and Others v Sweden - 61167/08 [2010] ECHR 822 (4 May 2010)

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The European Court of Human Rights (Third Section), sitting on 4 May 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Luis López Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,

The applicants, Mr Besim Gashi, Ms Sylvana Osmanis and their four children are Serbian nationals of Roma origin, born 1981, 1981, 2002, 2003, 2005 and 2007. It appears that the first applicant was born in Kosovo^¹. The applicants currently live in Ryd, Sweden.

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicant spouses and their two eldest children entered Sweden in September 2004 and requested asylum. In support of their application they maintained that, being Roma, they would be harassed and discriminated against upon return to Serbia. Their request was refused by the Migration Board (Migrationsverket) on 11 April 2005.

The spouses re-applied and included their other two children, who were born in Sweden in 2005 and 2007.

Their request was refused by the Migration Board on 29 June 2007 and this decision was upheld on appeal by the Migration Court (Migrationsdomstolen) on 13 July 2007. At some point, leave to appeal was refused by the Migration Appeal Court (Migrationsöverdomstolen).

Their request was also refused by the Migration Board on 28 February 2008, and this decision was upheld on appeal by the Migration Court on 22 October 2008 and by the Migration Appeal Court on 26 November 2008.

On 9 December 2008 the Migration Board refused to revoke the deportation order in respect of the first applicant.

Originally, the applicants were to be deported to the then State Union of Serbia and Montenegro.

On 28 May 2009 the Swedish Government informed the Court that the applicants had said that they were willing to cooperate in their return to Serbia. They had not, however, submitted any documents regarding their identity. They had visited the Embassy of Serbia in order to obtain travel documents, but Serbia is not prepared to receive them as it cannot find the applicants in its registers and the applicants have no identity papers which show that they are from Serbia. The enforcement of the expulsion order will therefore be turned over to the police. To sum up, it was not possible to be more exact as regards the destination to which the applicants would be deported, but the efforts will be focused on Serbia, unless the applicants show that some other country is prepared to receive them.

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 – hereafter referred to as “the 2005 Act”).

Chapter 5, Section 1, of the 2005 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 2005 Act).

Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien's health status. 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 the grant of a residence permit.

As regards the enforcement of a deportation or expulsion order, account has 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 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 2005 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 2005 Act).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).

Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act).

In the UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Individuals from Kosovo, 9 November 2009, the UN High Commissioner for Refugees states as follows:

All claims by asylum-seekers from Kosovo should be considered on the basis of their individual merits according to fair and efficient refugee status determination procedures.

Some of the claims lodged by asylum-seekers from Kosovo may give rise to possible exclusion from refugee status. UNHCR considers that groups set out in this section face a particular risk of persecution or serious harm in Kosovo, including through cumulative discriminatory acts. This listing is not to be construed as exhaustive and is based on information available to the UNHCR at the time of writing.

Kosovo Serbs and Kosovo Albanians inhabiting areas where they are in the minority, and Kosovo Roma inhabiting any part of Kosovo, continue to face serious restrictions to their freedom of movement and the exercise of fundamental human rights, including serious societal and sometimes administrative discrimination that would limit in particular their ability to exercise their political, social and economic rights. Furthermore, there are reports of threats and physical violence perpetrated against these communities. The Ashkali and Egyptian minorities, due to their racial and ethnic characteristics, may be confused with Kosovo Roma. Similarly to the Kosovo Roma, the Ashkali and Egyptian minorities often lack identity papers and are therefore placed in difficult circumstances with regard to access to social services, health care and education. Asylum applications from members of these communities should be assessed carefully in order to evaluate whether there is a need for international protection, based on a risk of persecution on grounds of actual or perceived race or nationality.”

Invoking Article 3 of the Convention, the applicants complained that the Swedish authorities refused to grant them asylum.

The applicants maintain that their deportation would constitute a violation of Article 3 of the Convention which, in the relevant parts, reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

It is not known to where exactly the applicants will be deported. The Governments' efforts will be focused on Serbia, unless the applicants show that some other country is prepared to receive them. So far, however, Serbia has not been prepared to receive the applicants. The applicants seem to be convinced that they will be deported to Kosovo.

The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008 ...).

It is also established case-law of the Court that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).

In so far as the applicants may be deported to Serbia, the Court does not find that this would in itself be a violation of the Convention and it considers that the facts of the case do not meet the threshold required to attract the protection of Article 3 of the Convention.

In so far as the applicants may be deported to Kosovo, the Court notes in particular the recent UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Individuals from Kosovo. It is fully aware of the difficulties that minorities face in general in Kosovo. There is no indication, however, that the situation is so serious that return of the applicants to Kosovo would constitute, in itself, a violation of Article 3 of the Convention. The Court reiterates in this respect that it has never excluded the possibility that a general situation of violence in a country of destination will be of sufficient level of intensity as to entail that a removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (see, for example, NA. v. the United Kingdom, no. 25904/07, § 115, 17 July 2008).

Moreover, if the applicants are deported to Kosovo, there is no indication that they will be removed to an area where they would be in the minority or where the conditions and the “treatment” of them would attain the requisite level of severity to engage Article 3 of the Convention.

In these circumstances the applicants have failed to substantiate that they would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if deported to Kosovo (see, among other authorities, Saadi v. Italy [GC], quoted above, § 125).

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

1 All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

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You are here: BAILII >> Databases >> European Court of Human Rights >> GASHI and Others v Sweden - 61167/08 [2010] ECHR 822 (4 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/822.html Cite as: [2010] ECHR 822