FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY
OF
Application no.
46553/99
by S.C.C.
against Sweden
The European
Court of Human Rights (First Section) sitting on 15 February 2000 as a Chamber
composed of
Mr J. Casadevall, President,
Mrs E. Palm,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr C. Bîrsan,
Mrs W. Thomassen,
Mr T. Pantîru, judges,
and Mr M. O’Boyle, Section Registrar;
Having regard to
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms;
Having regard to
the application introduced on 3 March 1999 by S.C.C. against Sweden and
registered on 5 March 1999 under file no. 46553/99;
Having regard to
the reports provided for in Rule 49 of the Rules of Court;
Having regard to
the observations submitted by the respondent Government on 6 May 1999 and the
observations in reply submitted by the applicant on 23 July 1999;
Having
deliberated;
Decides as follows:
THE FACTS
The applicant is
a Zambian national born in 1962. At present she resides at Spånga, Sweden. She
is represented before the Court by Mr Peter Bergquist, a lawyer practising at
Tyresö, Sweden.
A. Particular
circumstances of the case
The facts of the
case, as submitted by the parties, may be summarised as follows.
The applicant
entered Sweden on 26 April 1990 with her husband, a first secretary at the
Zambian Embassy in Stockholm, and their two children, born in 1988 and 1990. The
applicant’s two children from a previous marriage, born in 1982 and 1985,
remained in Zambia. The applicant was granted a work permit for one year as from
November 1992. On 30 December 1993 she applied for an extended work permit. She
stated, inter alia, that she and her husband did not have a good marriage
and that he assaulted her, that she had rented an apartment in Stockholm, and
that she could not return to Zambia since she was afraid of her husband’s
relatives. In December 1993 the applicant’s two children who had remained in
Zambia were brought to Sweden.
The applicant
remained in Sweden until early 1994 when it appears she returned to Zambia in
connection with her husband’s end of work at the Embassy.
On 17 March 1994
the National Immigration Board (Statens invandrarverk) rejected her above
application for a work permit. The Board found that she had no connection to
Sweden and that she had left the country.
On 8 May 1996 the
applicant, having returned to Sweden, applied for a work permit and a residence
permit for one year as from August 1996. The investigations made by the National
Immigration Board disclosed that she and her husband, together with the four
children, had returned to Zambia in 1994 and that they had intended to divorce.
However, her husband died before the divorce became final. The applicant stated
that she had returned to Sweden in November 1994 in order to pay her debts and
because she had been employed at a hotel in Stockholm. She also stated that she
stayed in Sweden for economical reasons and that she wanted a residence and work
permit limited to one year, after which time she intended to return to Zambia.
On 9 January 1998
the National Immigration Board rejected the application and ordered the
applicant’s deportation to Zambia. The Board found that neither the applicant’s
previous stay in Sweden – as the wife of a diplomat – nor the alleged threats
against her by her husband’s relatives constituted grounds for granting her a
residence permit. The Board also took into account that the applicant’s children
lived in Zambia.
The applicant
appealed to the Aliens Appeals Board (Utlänningsnämnden). She now stated
that she was infected with HIV and that she should be granted a residence permit
on humanitarian grounds as the necessary medical care was not available in
Zambia. She submitted two medical certificates issued on 2 February and 20
August 1998 according to which the applicant’s HIV infection had been detected
in 1995. She made regular visits to
the hospital. It was planned to commence an anti-HIV treatment during the next
year. As such treatment was complicated and required strict adherence it was
further indicated that treatment could only commence if the applicant was given
a long-term permit to reside in Sweden.
On 10 November
1998 the Appeals Board upheld the Immigration Board’s decision. Referring to a
decision taken by the Swedish Government on 23 June 1994 (see below), the
Appeals Board considered that the applicant’s health status did not give reason
to grant her a residence permit.
The applicant
made a new application for a residence permit. She submitted a medical
certificate issued on 25 January 1999, according to which her state of health
had deteriorated. As a consequence, the anti-HIV treatment previously envisaged
had been initiated. She also submitted a certificate issued on 27 January 1999
maintaining that a deportation of the applicant would result in the termination
of her HIV treatment, the consequences of which would be a faster process
towards the AIDS stage and her supposed death.
By a decision of
10 February 1999 the Appeals Board rejected the application stating, inter
alia, that a new application has to be based on circumstances which have not
previously been examined in the matter.
The applicant
lodged a new application with the Appeals Board on 19 February 1999. In addition
to what she had previously stated, she now claimed that she lived with F.R., a
Somalian citizen who had been given a permit to reside in Sweden in 1992. He had
been suffering from an HIV infection for about ten years. Allegedly, they had
met in the summer of 1995 and had been cohabiting since the summer of 1996. The
applicant claimed that she had not previously referred to this relationship,
since she was afraid that it would be held against her. She further stated that
she did not intend to bring her children to Sweden in case she was granted a
residence permit. Her brother, who allegedly had taken over the responsibility
for her children, planned to send them to school in England.
On 23 February
1999 the Appeals Board rejected the application. The Board noted, inter alia,
that the applicant had not previously referred to her relationship with F.R. and
considered that there were thus reasons to question the seriousness of the
relationship. The Board did not find it obvious that the applicant would have
been granted a residence permit on the ground of the alleged relationship, had
she applied for it according to the main rule laid down in Chapter 2, Section 5
of the Aliens Act (see below). Furthermore, the Board found that it would not be
contrary to requirements of humanity to execute the expulsion decision.
On 5 March 1999, following the Court’s indication to the Swedish Government that it was desirable that the applicant not be expelled to Zambia before 16 March 1999 (see below), the National Immigration Board stayed the applicant’s deportation. The Board’s decision is still in force.
B. Relevant domestic law and practice
The basic
provisions concerning the right of aliens to enter and to remain in Sweden are
laid down in the 1989 Aliens Act (utlänningslagen, 1989:529). The Act
also defines the conditions under which an alien can be expelled from the
country, as well as procedures related to the enforcement of decisions under the
Act. There are normally two instances that deal with matters concerning the
right of aliens to enter and remain in Sweden; the National Immigration Board
and the Aliens Appeals Board. In exceptional cases, the Government may determine
whether or not an alien shall be allowed to remain in Sweden following a
referral to the Government, by either Board, of an application for residence
permit (Chapter 7, Section 11).
Chapter 1,
Section 4 of the Aliens Act provides that an alien staying in Sweden for more
than three months shall have a residence permit. Such a permit may be issued,
inter alia, to an alien who is married to or cohabiting with a person
domiciled in Sweden or who has been granted a residence permit to settle in
Sweden. A permit may also be issued to an alien who, for humanitarian reasons,
should be allowed to settle in Sweden (Chapter 2, Section 4). A permit to reside
in Sweden shall, according to Chapter 2, Section 5, have been granted before
entering the country. As a principal rule all applications made after the alien
has entered the country shall be rejected. This does not apply, however, if,
inter alia, the alien on humanitarian grounds should be allowed to settle in
Sweden.
With regard to
diplomatic officials employed by foreign powers in Sweden, together with their
families, the Act only applies to the extent prescribed by the Government (cf.
Chapter 12, Section 2). It follows from the Aliens Ordinance (utlänningsförordningen,
1989:547) that diplomatic officials and their families are exempted from the
requirement to hold a residence permit.
As regards
serious illness, this may in exceptional cases constitute humanitarian reasons
for a residence permit on condition that it is a life-threatening illness for
which no treatment can be provided in the alien’s home country. Further, care or
treatment in Sweden should lead to an improvement in the alien’s condition or be
life saving. Thus, the alien’s condition should be so serious that he or she
would be likely to die or his or her health would deteriorate considerably if he
or she was to be sent home. These principles have been expressed and applied by
the Government in a number of precedent rulings of 17 February 1994 concerning
medical humanitarian reasons in general and in rulings of 23 June 1994 and 16
March 1995 concerning HIV infection as a reason for a residence permit. The
Government also stated that the mere fact that treatment in Sweden is of a
higher quality than in the alien’s home country does not constitute grounds for
granting a residence permit, nor are financial difficulties in getting the
appropriate treatment in the receiving country a reason for granting such a
permit.
The National Board of Health and Welfare (Socialstyrelsen) stated in an opinion of 25 March 1994, enclosed in the Government’s decisions of 23 June 1994 and referred to in the decision of 16 March 1995, that the fact that a person is diagnosed with HIV or AIDS should not alone and generally be decisive of the question of humanitarian grounds. Instead, the assessment should be founded on the alien’s general state of health taking serious clinical symptoms into consideration. The Board concluded that it found no reason, in this respect, to make a difference between HIV infection and other diseases with a serious prognosis.
Further, according to the Aliens Act, an alien who is considered to be a
refugee or otherwise in need of protection is, with certain exceptions, entitled
to residence in Sweden (Chapter 3, Section 4).
An alien who is
to be refused entry or expelled in accordance with a decision that has gained
legal force may be granted a residence permit if he or she files a so-called new
application based on circumstances which have not previously been examined in
the case of refusal of entry or expulsion and if (i) the alien is entitled to a
residence permit under Chapter 3, Section 4, or (ii) it would be contrary to
requirements of humanity to execute the refusal-of-entry or expulsion decision
(Chapter 2, Section 5 b).
Also when it
comes to enforcing a decision on refusal of entry or expulsion, regard is taken
to the risk of 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 8, Section 1).
COMPLAINTS
1. The applicant claims
that her state of health will deteriorate if she is expelled to Zambia. The
therapeutic regime recently initiated to treat her HIV infection – which enables
her to live a practically normal life – requires strict adherence on the part of
the applicant. Furthermore, the treatment is not available in Zambia. Thus, her
expulsion to that country would impair her health and lower her life expectancy
in violation of Articles 2 and 3 of the Convention.
2. The applicant
further asserts that the expulsion would violate her right to respect for her
family life under Article 8 of the Convention, as she would be separated from
F.R. Allegedly, his state of health prevents him from travelling to Africa.
3. Also under Article
8, the applicant states that her right to enjoy a good reputation has been
violated as, allegedly, the Aliens Appeals Board sent one of its decisions
concerning her to the wrong address, thus revealing her state of health to other
people.
PROCEDURE
The application
was introduced on 3 March 1999 and registered on 5 March 1999.
On 5 March 1999
the acting President of the First Section decided to indicate to the respondent
Government, in accordance with Rule 39 § 1 of the Rules of Court, that it was
desirable in the interest of the parties and the proper conduct of the
proceedings not to expel the applicant to Zambia until 16 March 1999.
On 16 March 1999 the Court (First Section) decided to communicate the applicant’s complaints submitted under Articles 2 and 3 of the Convention to the respondent Government under Rule 54 § 3 (b) of the Rules of Court and that the indication under Rule 39 be extended until further notice.
The Government’s
written observations were submitted on 6 May 1999, after an extension of the
time-limit fixed for that purpose. The applicant replied on 23 July 1999, also
after an extension of the time-limit.
THE LAW
1. The applicant claims
that her expulsion to Zambia would impair her health and lower her life
expectancy in violation of Articles 2 and 3 of the Convention.
Article 2 of the
Convention reads as follows:
“1. Everyone’s
right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation
of life shall not be regarded as inflicted in contravention of this article when
it results from the use of force which is no more than absolutely necessary:
(a) in defence
of any person from unlawful violence;
(b) in order to
effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action
lawfully taken for the purpose of quelling a riot or insurrection.”
Article 3 of the
Convention reads as follows:
“No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.”
The Government
consider that there is nothing to indicate that the expulsion of the applicant
would amount to a violation of Article 2 of the Convention. In any event, the
Government find it difficult to dissociate the complaint raised under Article 2
from the substance of her complaint under Article 3. They therefore deal with
the substance of her complaints under the latter provision.
The Government
maintain that there is no evidence that the applicant suffers from any illness
related to HIV or that she has reached the stages of AIDS. It is moreover,
according to a report submitted on 26 March 1999 by the Swedish Embassy in
Zambia, possible for her to receive the same type of treatment in Zambia as in
Sweden, however at considerable costs. The Government further assert that the
applicant will be able to enjoy the moral and social support of her relatives in
Zambia.
The Government conclude that it has not been shown that the applicant’s expulsion to Zambia would violate her rights under Articles 2 and 3 of the Convention. In the Government’s view, the applicant’s complaints are therefore in this regard manifestly ill-founded.
The applicant contends that her state of health is so serious that she is
undergoing treatment in order to delay the development of AIDS related symptoms.
An interruption of the treatment would be detrimental to her health. The
applicant was infected with the HIV virus prior to 1995. The average life
expectancy in Africa for a person infected with HIV is 5–7 years from the time
of infection, whilst in Sweden HIV is nowadays treated as a chronic disease. If
treatment is initiated at an early stage of the infection, the probability of a
successful outcome is higher. Modern antiretroviral drugs have the most potent
impact on patients who are relatively healthy. For the applicant this means that
an expulsion to Zambia would be more deleterious if she is in relatively good
health than if she has started to develop AIDS symptoms.
The applicant
contests that adequate care can be provided for her in Zambia since modern
medicine is not available there. She furthermore lacks the necessary means to
disburse for the care at hand in Zambia. Expulsion to Zambia would diminish her
quality of life, thus constituting an inhuman treatment contrary to Article 3.
It would also shorten her life and affect her career in violation of Article 2.
The applicant
refers to a medical certificate issued on 20 July 1999, according to which the
likelihood that HIV-infected people eventually develop AIDS is close to 100 %
and that the applicant over the next few years will most likely develop AIDS and
die. However, as a result of the treatment she is presently undergoing the
suffering from developing AIDS may well be pushed far into the future. This
life-prolonging process has a much better success-rate if the applicant may be
given the chance to continue the treatment in Sweden since the standard of care
and the monitoring possibilities in Zambia are reduced compared to what can be
offered in Sweden.
The Court shares
the view of the Government that the complaints raised by the applicant under
Article 2 are indissociable from the substance of her complaint under Article 3
in respect of the consequences of a deportation for her life, health and welfare
(cf. the D. v. United Kingdom judgment of 2 May 1997, Reports of Judgments
and Decisions 1997-III, p. 795, § 59). These complaints should therefore be
examined in unison.
The Court recalls
at the outset 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, in exercising their right to expel such aliens Contracting
States must have regard to Article 3 of the Convention, which enshrines one of
the fundamental values of democratic societies. The Court has repeatedly
stressed in its line of authorities involving extradition, expulsion or
deportation of individuals to third countries that Article 3 prohibits in
absolute terms torture or inhuman or degrading treatment or punishment (ibid.,
pp. 791–792, §§ 46–47).
The Court is not prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. In any such contexts the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant’s personal situation in the deporting State (ibid., pp. 792–793, §§ 49–50; application no. 23634/94, Tanko v. Finland, Commission’s decision of 19 May 1994, DR 77-A, p. 133 et seq.).
According to established case-law aliens who are subject to expulsion cannot in
principle claim any entitlement to remain in the territory of a Contracting
State in order to continue to benefit from medical, social or other forms of
assistance provided by the expelling State. However, in exceptional
circumstances an implementation of a decision to remove an alien may, owing to
compelling humanitarian considerations, result in a violation of Article 3 (see,
for example, the above-mentioned D. v. the United Kingdom judgment, p. 794,
§ 54).
In that case the
Court found that the applicant’s deportation to St. Kitts would violate Article
3, taking into account his medical condition. The Court noted that the applicant
was in the advanced stages of AIDS. An abrupt withdrawal of the care facilities
provided in the respondent State together with the predictable lack of adequate
facilities as well as of any form of moral or social support in the receiving
country would hasten the applicant’s death and subject him to acute mental and
physical suffering. In view of those very exceptional circumstances, bearing in
mind the critical stage which the applicant’s fatal illness had reached and
given the compelling humanitarian considerations at stake, the implementation of
the decision to remove him to St. Kitts would amount to inhuman treatment by the
respondent State in violation of Article 3 (see pp. 793–794, §§ 51–54 of the
judgment).
In a recent
application the Commission found that the deportation to the Democratic Republic
of Congo (formerly Zaire) of a person suffering from a HIV infection would
violate Article 3, where the infection had already reached an advanced stage
necessitating repeated hospital stays and where the care facilities in the
receiving country were precarious (see application no. 30930/96, B.B. v. France,
decision of 9 March 1998; case subsequently struck out by the Court on 7
September 1998).
Against this
background the Court will determine whether the applicant’s deportation to
Zambia would be contrary to Article 3 in view of her present medical condition.
In so doing the Court will assess the risk in the light of the material before
it at the time of its consideration of the case, including the most recent
available information on her state of health (cf. the Ahmed v. Austria judgment
of 17 December 1996, Reports 1996-VI, p. 2207, § 43).
The Court recalls
that the applicant’s present medical status was diagnosed in 1995 and that her
anti-HIV treatment has just recently commenced. The Court further recalls the
conclusion of the Swedish National Board of Health and Welfare that, when
assessing the humanitarian aspects of a case like this, an overall evaluation of
the HIV infected alien’s state of health should be made rather than letting the
HIV diagnosis in itself be decisive. The Court finds that the Board’s reasoning
is still valid.
The Court notes
that according to the above-mentioned report from the Swedish Embassy AIDS
treatment is available in Zambia. It also notes that the applicant’s children as
well as other family members live in Zambia. Having regard to the above case-law
and in the light of the material before it the Court finds that the applicant’s
situation is not such that her deportation would amount to treatment proscribed
by Article 3.
It follows that
this part of 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.
2. The applicant also
complains that her expulsion would violate her right to respect for her family
life as she would be separated from F.R. She invokes Article 8 of the
Convention.
Article 8 of the
Convention reads as follows:
“1. Everyone has
the right to respect for his private and family life, his home and his
correspondence.
2. There shall be
no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.”
The applicant
claims that her right to respect for her family life would be violated if she is
separated from F.R. She has maintained that she waited until 1999 to refer to
this relationship because she was afraid that it would be held against her.
The Court recalls
that the expulsion of a person from a country in which close members of his or
her family live may amount to an unjustified interference with the right to
respect for family life as guaranteed by the above provision (cf., e.g., the
Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, p.
609–610, § 41).
The Court notes
that the existence of a “family life” was put in question by the national
authorities. However, the Court does not find it necessary to examine this
question further. Assuming that the decision to deport the applicant to Zambia
would amount to an interference with her right to respect for her family life
within the meaning of Article 8 § 1 of the Convention it is necessary to
ascertain whether the deportation would satisfy the conditions of Article 8 § 2
of the Convention, i.e. whether it is “in accordance with law”, pursues one or
more of the legitimate aims set out in that paragraph, and is “necessary in a
democratic society” for the achievement of that aim or aims.
It is not
contested that the decision ordering the applicant’s expulsion is based on the
relevant provisions of the Aliens Act. The Court further finds that the
interference in issue has aims which are compatible with the Convention, namely
“the economic well-being of the country”. The Court reiterates, furthermore,
that it is for the Contracting States to maintain public order, inter alia,
by exercising their right to control the entry and residence of aliens.
As regards the question whether the expulsion order is “necessary in a democratic society” in pursuit of the above-mentioned aim the Court recalls that the alleged relationship with F.R. commenced at a time when the applicant was illegally residing in Sweden. Consequently, she could not reasonably have expected to be able to continue the cohabitation in Sweden. Moreover, she made no reference to the relationship in her applications to the immigration authorities until early 1999, about three and a half years after it had supposedly started. The Court also notes that the applicant’s four children as well as other family members live in Zambia.
In these circumstances, and taking into account the margin of appreciation left
to the Contracting States as well as the reasons set out above in respect of
Article 3 of the Convention, the Court concludes that the national authorities
did strike a fair balance between the applicant’s rights on the one hand and the
legitimate interests of the Contracting State on the other. Thus, her
deportation, if effected, may reasonably be considered “necessary” within the
meaning of Article 8 § 2 of the Convention.
It follows that
this part of the application is also 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.
3. Lastly, the
applicant claims that her right under Article 8 to enjoy a good reputation has
been violated as, allegedly, the Aliens Appeals Board sent one of its decisions
concerning her to the wrong address, thus revealing her state of health to other
people.
The Court finds
that the complaint regarding the postal handling of a decision sent out by the
Aliens Appeals Board is unsubstantiated and that it does not disclose any
appearance of a violation of Article 8 of the Convention.
It follows that
this part of 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.
For these
reasons, the Court, by a majority,
DECLARES THE
APPLICATION INADMISSIBLE.
Michael O’Boyle Josep Casadevall
Registrar President