Article 19 - Protection in the event of removal, expulsion or extradition
Key facts of the case:
In November 2010, the Swedish Migration Board refused A. residence and work permit and decided to deport her from Sweden. Her main reason for wanting to stay in Sweden was her deteriorating health status. The Migration Board did not find this to be sufficient grounds for granting A. a residence permit. A. appealed to the Migration Court. In the appeal, A. added amongst other things that her health status was due to the fact that she suffered from Alzheimer’s disease. A.’s appeal was denied by the Migration Court on the same grounds as the Migration Board. The Migration Court of Appeal denied her review permit in 2012. A. has since 2012 claimed obstacles for the enforcement of the Migration Board’s decision, but she has not been granted a residence permit yet. In the present application, A. claims again enforcement obstacles with reference to her serious health situation. A. states that a deportation must be seen as an inhuman and degrading treatment in accordance with article 3 of the European Convention on Human Rights that no one shall be subjected to the death penalty, torture or other inhuman and degrading treatment. The Migration Board did not agree with this interpretation of what is to be considered inhuman and degrading treatment and could not find that the deportation of A. would constitute a violation of her human rights. As a consequence, the conditions for initiating a new judicial process was not met.
A. appealed the new decision of the Migration Board to the Migration Court. She demanded a new review of her application for residence permit, because of her deteriorating health status and her need of health care and support from relatives in Sweden. If A. were to be deported to Iran, she maintains that she will not get the healthcare she needs. Furthermore, she is dependent on daily help from relatives, which she will not have in Iran. A deportation would endanger A.’s life and should therefore be interpreted as inhuman and degrading treatment in accordance with article 3 of the European Convention. The Migration Court refused A.’s appeal.
A. appealed the decision of the Migration Court to the Migration Court of Appeal. The Court of Appeal added other relevant legal provisions like article 19.2 of the EU Charter and chapter V of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as benificiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protections granted and chapter 12, paragraph 1 of the Swedish Aliens Act. The court also reviewed relevant case law from European Court of Human Rights (eg. case of D. vs. United Kingdom 30240/96 from 27 May 2008 and case 1412/12 M.T. vs. Sweden from 26 February 2015) and the EU Court of Justice (eg. case 2004/83/EG from 29 April 2004).
Outcome of the case:
The Migration Court of Appeal (Migrationsdomstolen) decided to refuse the appeal made by A. Its reasoning was that if a circumstance should lead to a review permit this circumstance must be new. The Migration Court of Appeal notes that A.’s health situation, her disease-related problems and family situation had to a large extent been tried in court in 2012. The Court of Appeal states that the changed status of the health of A. is serious but that it cannot be assessed as equal to the exceptional conditions that was the basis for the reasoning of the European Court of Human Rights in the case of D. vs. United Kingdom 30240/96. Hence, such circumstances which are needed for a new reconsideration has not been put forward.
Title 3. European legislation / 3.1 Legislation
It is stated in article 19.2 of the European Union’s Charter of Fundamental Rights inter alia that no one may be expelled to a State where there is a serious risk that he or she would be subject to death penalty, torture or other inhuman or degrading treatment or punishment.