SECOND SECTION
DECISION
Application no. 33735/04
by Mohammed Walid ABDELRAHMAN HUSSEIN and Others
against Sweden
The European Court of Human Rights (Second Section), sitting on 30 May 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrsA. Mularoni,
MrsE. Fura-Sandström,
MsD. Jočienė,
MrD. Popović, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 9 September 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the decision of 5 January 2006 to adjourn the Court’s proceedings in the case until 31 March 2006,
Having deliberated, decides as follows:
THE FACTS
The applicants are Mr Mohammed Walid Abdelrahman Hussein, a stateless Palestinian born in 1973 (the first applicant), Mrs Inna Ivanova, a Russian national born in 1982 (the second applicant), their son, Solafa Shawali, born in 2003 (the third applicant), and their daughter, Widad Shawali, born in 2004 (the fourth applicant). They were represented before the Court by Ms Merit Wager, Stockholm, and Mr Mauricio Rojas, Värmdö. The respondent Government were represented by Mr C.H. Ehrenkrona and Ms A. Linder, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant arrived in Sweden on 31 July 2000 and applied for asylum. Born in Egypt but a resident of Saudi Arabia from the age of 2 or 3, he claimed that he had left the latter country as the Saudi security services had wished to recruit him to spy on Syrians, Palestinians and other nationalities. His refusal had led to difficulties which had forced him to quit his job. Moreover, he had been contacted by some Saudi acquaintances who had wished to use his family’s home for their money laundering activities. In general, he feared that he would be apprehended and killed upon return on account of having applied for asylum in another country.
On 23 September 2002 the Migration Board (Migrationsverket) rejected the application, considering that he had not shown that he would be of any particular interest to the Saudi authorities or that he would be persecuted upon return to that country.
The second applicant arrived in Sweden from Finland on 8 August 2002 and applied for asylum. She met the first applicant soon thereafter and they married on 23 October 2002.
On 7 February 2003 the Aliens Appeals Board (Utlänningsnämnden) rejected the first applicant’s appeal.
On 28 February 2003 the Migration Board rejected the second applicant’s application and ordered that she be deported to Finland under the provisions of the Dublin Convention.
The second applicant did not appeal against the Migration Board’s decision. Instead, the first and second applicants lodged a new joint application for residence permits. They submitted that there were strong humanitarian reasons against separating them by deporting them to different countries. Furthermore, their yet unborn child would need both parents.
On 2 May 2003 the Aliens Appeals Board rejected the new application.
An application for a residence permit for the third applicant was denied by the Migration Board on 22 July 2003. The Board further decided that he should be deported to Finland with his mother.
A further application for residence permits was lodged on 25 August 2003. In addition to what they had submitted in connection with previous applications, they, inter alia, stated the following. The first applicant had contacted a former “sponsor” in Saudi Arabia who had informed him that he would not be able to return to that country. As he could not be deported to Finland either, there was an absolute impediment to his expulsion. It would therefore be reasonable to grant him a permanent residence permit after his long stay in Sweden. The second and third applicants could then be granted permits on the basis of their connection to him, and the family would be relieved of the enormous psychological stress under which they had lived for a long period of time. Moreover, the second applicant was pregnant with the couple’s second child.
On 25 March 2004 the Aliens Appeals Board rejected the application. It noted that, according to information available to the Migration Board, the statement given by the Saudi “sponsor” was not correct. Moreover, there appeared to be a possibility to expel the first applicant to Egypt, and the Migration Board was trying to obtain a travel document for that purpose. In regard to the possibility that the family would be split up, the Aliens Appeals Board had regard to the principles of Article 8 of the Convention and stated that, in the case of a family without a right to reside in Sweden, they should in the first place be united in the home country of one of the family members. In the instant case, it had not yet been established whether the family could reside together in Saudi Arabia or Egypt and, in any event, there was nothing to indicate that they would not be able to unite in Russia. The possibility that the family members for some time would stay in different countries would not be in breach of Article 8. Furthermore, the Appeals Board did not find that the general circumstances of the case – including the young child – were such that the applicants should be granted permits on humanitarian grounds.
Further applications for residence permits were rejected by the Appeals Board on 16 July 2004 and 5 July 2005.
On 17 February 2006 the Migration Board, examining the applicants’ cases on its own initiative in accordance with a temporary provision of the Aliens Act, granted the applicants residence permits and repealed the deportation orders against them. The second, third and fourth applicants were given permanent permits. However, with reference to his criminal convictions, the first applicant was granted a temporary permit until 17 February 2007.
COMPLAINTS
The applicants complained, under Article 3 of the Convention, that the long period during which they had lived in desperation and uncertainty about their family’s fate amounted to inhuman treatment. They asserted that the Swedish authorities were aware that it was not possible to deport stateless Palestinians anywhere. The authorities’ actions would thus force the disruption of the family. Claiming that there would be a lasting separation of the family, the applicants further complained that their right to respect for their family life under Article 8 of the Convention had been breached.
THE LAW
On 17 February 2006 the first applicant was granted a temporary residence permit in Sweden until 17 February 2007. On the same day the other applicants were granted permanent residence permits. On 7 March 2006 the applicants submitted that they nevertheless maintained their application. They claimed that the prolonged domestic proceedings had caused both the first applicant and his family mental suffering which had involved a violation of Article 3 of the Convention. On 17 March 2006 the respondent Government submitted that the matter before the Court had been resolved and that the case should be struck out in accordance with Article 37 § 1 (b) of the Convention.
The Court notes that there has been no friendly settlement or agreed arrangement in the present case. The grant of residence permits and the repeal of the deportation orders were measures which the Migration Board took under a new temporary provision of the Aliens Act.
However, the Court considers that the circumstances lead to the conclusion that the matter has indeed been resolved. The applicants’ initial complaint to the Court was essentially that their deportation from Sweden would cause them irreparable harm contrary to Articles 3 and 8 of the Convention. That threat of a potential violation has now been removed by virtue of the decisions of 17 February 2006 to grant them residence permits in Sweden (see, Paez v. Sweden, judgment of 30 October 1997, Reports of Judgments and Decisions 1997‑VII, p. 2445, § 29). In regard to the first applicant, whose permit is of a temporary nature, the Court observes that he will be able to apply for a prolongation of the permit or for a permanent residence permit to the Migration Board and, in case of a negative decision, appeal to the national courts.
In these circumstances, the Court is of the opinion that it is no longer justified to continue the examination of the application.
Moreover, in accordance with Article 37 § 1 in fine, the Court finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
S. NaismithJ.-P. Costa
Deputy RegistrarPresident
Full & Egal Universal Law Academy