FIRST SECTION
DECISION
Application no. 73398/14
Majad AL AHMAD
against Greece and Sweden
The European Court of Human Rights (First Section), sitting on 22 September 2015 as a Committee composed of:
Khanlar Hajiyev, President,
Linos-Alexandre Sicilianos,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 24 November 2014,
Having deliberated, decides as follows:
THE FACTS
The applicant Majad AL AHMAD is a Syrian national born on 2 January 2001 in Damascus.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Fleeing Syria, the applicant, an unaccompanied minor, entered Greece on 28 August 2014. He arrived alone with the intention to be reunited with his older brother who had obtained refugee status in Sweden.
Upon arrival in Greece, the applicant was detained together with adults in the yard of a police station for three days. A deportation order was issued against him, which was later suspended for six months. After his release, the applicant lived in parks and squares without regular access to food and water, to healthcare and to any form of social or psychological support.
For about a month in November, the applicant participated in a protest in front of the Greek Parliament along with approximately 300 Syrian nationals.
In December 2014, the applicant’s brother came to Greece and, on 23 December 2014, they both went to the Swedish embassy in Athens, where the applicant submitted a request for international protection, a request for humanitarian assistance, a request for a visa or a “laissez-passer” on humanitarian grounds and a request for family reunification. The applicant’s brother co-signed the application and declared that he would undertake to initiate procedure on taking legal custody of the applicant as soon as the latter landed on Swedish territory. In his request, the applicant asked that the case be given priority, that Sweden directly assumes responsibility for the examination of the asylum claim according to the provisions of Articles 8 et 9 of the Dublin Regulation III, to be directly provided with “humanitarian assistance” as long as he was physically present on the Greek territory and not to be returned to the jurisdiction of Greece since he could not be adequately protected by the Greek State. Alternatively, he asked the embassy to act according to Article 20 § 4 of the Dublin Regulation III and send the request without delay to the Greek authorities and that the Swedish State grant him legal aid.
The applicant and his brother refused to leave the embassy premises unless the embassy assumed the applicant’s protection. However, in two written notes given to the applicant, dated 23 December 2014, “to whom it may concern”, the embassy informed the applicant that “it is not possible to apply for asylum at a Swedish Embassy” and that, since the embassy could not make a decision as to his request for family reunification, “the request has to be submitted to the Swedish authorities”. The embassy therefore “kindly informed Majad Al Ahmad and [his] legal representation that this will take time and requested them to leave the Embassy premises.” The embassy further gave the applicant a “receipt of application”, confirming that they had received his application for a residence permit on 23 December 2014.
On 7 January 2015, the applicant went again to the Swedish embassy where he had an appointment for an interview.
On 29 March 2015, the period of suspension granted to the applicant’s deportation order expired.
The applicant claimed that, on 30 March 2015, his application for a residence permit on the ground of family reunification was rejected by the Swedish Migration Board to which it had been transmitted by the Swedish embassy in Athens. No copy of the decision was provided.
At an unspecified date, the applicant was smuggled out of Greece and reached Sweden on 11 April 2015, after travelling through FYROM, Serbia, Austria, Germany and Denmark. On 12 April 2015, he was escorted by his brother to the Migration Board and registered as an asylum seeker mentioning that he had already applied for asylum at the Swedish embassy in Athens. According to the applicant, the Migration Board officials answered that the request made in Athens was not a valid one and that the request was to be regarded as submitted on 12 April 2015. He was given two appointments for interviews, one on 4 June 2015 and another on 10 August 2015.
B. Relevant international law
Article 20 § 4 of the Dublin Regulation III provides:
“Where an application for international protection is lodged with the competent authorities of a Member State by an applicant who is on the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for international protection was lodged”.
COMPLAINTS
The applicant complained under Articles 1, 2, 3, 8, 13 and 14 of the Convention.
THE LAW
Under Article 1, the applicant claimed that Sweden denied its obligations flowing from extra-territorial jurisdiction in the embassy premises, by interpreting “jurisdiction” in a manner that narrows the scope of protection guaranteed by the Convention.
Under Article 2, the applicant claimed that the way he had been treated by both Greece and Sweden put his life in self-evident danger and no investigation took place after his report by Greek or Swedish authorities.
Under Article 3 and as regards Greece, the applicant claimed that he was subjected to inhuman and degrading living conditions, in breach of national and international law (substantive limb), that no investigation took place on his condition and that the EU solidarity has not been appealed to by Greece despite the fact that Greece admitted that it could not handle the Syrian refugee influx (procedural limb).
Under Article 3 and as regards Sweden, the applicant claimed that it subjected him to ill-treatment notably because: it refused him the right to seek asylum at the embassy; it turned him back to Greek jurisdiction on 23 December 2014; it did not investigate or forward to the Greek authorities his application for international protection; it did not provide humanitarian assistance to the applicant when he was still in Greece; it did not grant him legal aid by appointing him a Swedish lawyer.
Under Article 8, the applicant claimed that his private life (physical and moral integrity) and family life (with his brother) had been disproportionately interfered with by the Greek and Swedish authorities and that his best interest as a child had never been assessed, let alone been taken as a primary consideration throughout the decision making process involving his asylum and humanitarian assistance requests and living conditions. He further claimed that his asylum claim was not dealt with neither quickly nor carefully and that the family reunification procedure did not offered the guarantees of flexibility, promptness and effectiveness.
Under Articles 13 and 14, taken in conjunction with all the above Articles, the applicant claimed that he had not an effective remedy to challenge his victim status and that his status as an unaccompanied minor was not taken into consideration resulting into a discrimination in the enjoyment of all these rights.
A. As regards the complaints against Greece
The Court notes that the applicant had lodged an asylum request which had been transmitted to the competent Swedish authority, namely the Swedish Migration Board. It transpires from Article 20 § 4 of the Dublin Regulation III that it was not for the Swedish embassy to decide on the asylum claim nor to inform the Greek authorities. As long as the Greek authorities were not informed by the Swedish ones about the asylum request made by the applicant, they were not in a position neither to determine (always according to the same Article) which country was going to be responsible in deciding the applicant’s asylum claim nor to consider that the asylum request made in the embassy could be considered as a claim submitted to the Greek authorities.
Furthermore, in order for the applicant to be considered as an “unaccompanied minor asylum seeker” and benefit from any relevant protection scheme reserved to minor asylum seekers in Greece, he had to apply directly to the Greek authorities in this respect or to wait for the Swedish Migration Board to get in contact with them. However, the applicant never lodged a request for asylum with the Greek authorities. As he underlined in his statement of the facts, his intention was to go to Sweden in order to be reunited with his older brother who had settled there after having obtained refugee status. The applicant explained that if he had lodged an asylum request with the Greek authorities, he would have been placed under Greek jurisdiction, probably put in custody until his asylum request had been examined and, according to the Dublin Regulation II, it would have been impossible for him to join his brother in Sweden.
However, the Court is of the view that, in accordance with Article 35 § 1 of the Convention, the applicant should have sought protection of the rights that he was now asserting before the Court by applying for international protection to the Greek authorities. By not having done so, he has failed to satisfy the requirement of exhaustion of domestic remedies.
It follows that this part of the application is inadmissible and must be rejected under Article 35 §§ 1 and 4 of the Convention.
B. As regards the complaints against Sweden
The Court notes from the outset that the Swedish embassy informed the applicant that it was not possible to lodge an application for asylum in Sweden at the embassy. However, it did accept his application for a residence permit, apparently on the ground of family reunification, and transferred it to the Swedish Migration Board. The Court also observes that there is no indication that the applicant was escorted off the embassy premises by the use of force. Moreover, the applicant’s adult brother accompanied him for which reason there appear to have been no ground for the embassy personnel to believe that he was not taken care of by his brother while waiting for a reply to the request for residence permit. Furthermore, there is no general right to legal aid or free legal counsel when applying for a residence permit under Swedish law. If the applicant and his brother felt that it was necessary with legal assistance, they were free to contact and hire a lawyer at their own expense. It follows that the applicant’s complaints relating to the Swedish embassy are manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The applicant has further claimed that his request for a residence permit in Sweden was rejected in March 2015. However, he has not submitted this decision to the Court and it is thus impossible for the Court to verify this information or to know on which grounds the request allegedly was refused. Moreover, such a decision by the Migration Board can be appealed against the Migration Court and the Migration Court of Appeal for which reason the applicant’s complaints in this regard are, in any event, inadmissible for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
Lastly, the Court observes that the applicant is now in Sweden and that, although he has submitted no supporting documents to the Court, claims that he has a request for asylum pending there. The Court finds that since the Swedish authorities are examining his request, any complaints in relation to his asylum claim in Sweden are premature and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 15 October 2015.
André WampachKhanlar Hajiyev
Deputy RegistrarPresident
Full & Egal Universal Law Academy