Communicated on 2 March 2017
THIRD SECTION
Application no. 75348/16
C.A. and P.A.
against Sweden
lodged on 8 December 2016
STATEMENT OF FACTS
The applicants, Ms C.A. and Ms P.A., are Nigerian nationals who were born in 1988 and 2010 respectively and are currently in Sweden. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They are represented before the Court by Ms R. Nordström, a lawyer practising in Uppsala.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants, a mother and her daughter, applied for asylum in Sweden on 20 December 2015. As the first applicant had previously been granted a Schengen visa by the Italian Embassy in Lagos, Nigeria, valid until 9 January 2016, the Migration Agency (Migrationsverket) asked Italy to take over responsibility for the applicants’ asylum requests in accordance with the Dublin Regulation. On 2 May 2016 Italy accepted the request.
The applicants were informed by the Migration Agency of its intention to transfer them to Italy and they were given the opportunity to submit any reasons they might have to object to the transfer. In reply, the applicants submitted that they had been the victims of human trafficking in Italy and had been locked up in an apartment and ill-treated by the traffickers. They had managed to flee and travel to Sweden but were afraid that they would be forced into prostitution again by the traffickers if returned to Italy.
On 30 September 2016 the Migration Agency decided to transfer the applicants to Italy in accordance with the Dublin Regulation. It noted that the applicants’ need for protection was an issue for the Italian authorities, who lacked neither the will nor the ability to take measures against criminal acts. The Agency further considered that it would not be incompatible with the best interests of the child to transfer her together with her mother. Lastly, it found that it would not be unacceptable from a humanitarian perspective to transfer the applicants and that they had not presented sufficient reasons for Sweden to abstain from applying the Dublin Regulation and to examine their asylum applications. Their asylum requests were therefore dismissed and their transfer to Italy ordered.
The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), submitting that Sweden should agree to consider their asylum applications. They maintained their claims and added that they were in poor mental health due to their traumatic experiences in Italy. Since the second applicant was a young child, the best interest of the child should be given due consideration. They submitted certificates from various social workers, as well as medical certificates, which confirmed that the applicants were suffering from Post-Traumatic Stress Disorder (PTSD) and were receiving counselling for the traumas they had experienced in Italy. According to one medical certificate, dated 18 October 2016, by a physician and psychiatrist, it was deemed an absolute condition that the applicants be allowed to remain in the environment which they had come to consider as a safe place, if they were to be able to recover. In the applicants’ view, the general guarantees given by Italy in 2015 were not enough to ensure that they would be properly protected and taken care of in Italy.
The applicants further stated that they had reported to the Swedish police the violence of which they had been victims in Italy but that, on 4 July 2016, the police had decided to discontinue the preliminary investigation since Sweden lacked jurisdiction for the alleged crimes. However, the applicants insisted that they still be given a “reflection period” of 30 days in accordance with Article 13 of the Council of Europe Convention on Action against Trafficking in Human Beings.
On 26 October 2016 the Migration Court rejected the appeal concerning the transfer to Italy. It noted that there was very little scope for the member States to refrain from applying the provisions of the Dublin Regulation and that the reasons relied on by the applicants did not suffice to justify this in the present case. It was for the Italian authorities to take measures and investigate possible criminal acts committed against the applicants. The court also dismissed the request relating to the “reflection period”, which did not fall within the scope of the appeal before it.
The applicants appealed against the judgment to the Migration Court of Appeal (Migrationsöverdomstolen), maintaining their claims. They relied, inter alia, on a certificate issued by the Country Office in Finland of the International Organisation for Migration (IOM), dated 10 November 2016, which stated that the IOM had witnessed a continued rise in the number of Nigerian women coming to Italy, of whom some 80% had been estimated to be victims of trafficking. It further noted that, despite the efforts of the Government of Italy to respond to the needs of persons exposed to trafficking, the migration situation had put the National System on Counter‑Trafficking under immense pressure. It was difficult to find a place in a shelter and victims of trafficking might instead have to stay in a reception centre for asylum seekers, where their security could not be ensured.
Moreover, the applicants submitted that, on 29 November 2016, they had again reported to the Swedish police that they had been the victims of, inter alia, trafficking and assault and battery.
The applicants also requested the appellate court to stay the enforcement of the transfer while their appeal was pending. This request was rejected by the court on 2 December 2016.
On 9 December 2016 the Migration Court of Appeal refused leave to appeal.
In the meantime, the applicants asked the Migration Agency to grant them a “reflection period” in accordance with Article 13 of the Convention on Action against Trafficking in Human Beings as well as temporary residence permits.
On 29 November 2016 the Migration Agency rejected the requests. It noted that it had already decided that the applicants should be transferred to Italy in accordance with the Dublin Regulation. It noted that Italy was also a Contracting Party to the Convention on Action against Trafficking in Human Beings and that it was that country’s responsibility to protect the applicants. Moreover, it found that the “reflection period” of 30 days could be considered to have been satisfied, in view of the length of time the applicants had already spent in Sweden. The Agency further observed that the investigation into the applicants’ first report to the police had been discontinued and that the prosecutor had not made any request to the Agency for residence permits for the applicants, on the ground that a preliminary investigation was ongoing.
COMPLAINTS
The applicants complain under Articles 2, 3 and 4 of the Convention that they face a real risk of being exposed to human trafficking, prostitution and ill-treatment if returned to Italy and that, if they were to refuse the traffickers, they would be killed. They also complain that, since Sweden has not obtained individual guarantees from Italy, there is a real risk that their special needs would not be met.
QUESTION TO THE PARTIES
In the light of the applicants’ claims and the documents which have been submitted, would they face a risk of being subjected to treatment in breach of Articles 2, 3 and/or 4 of the Convention if the transfer order under the Dublin Regulations were enforced?
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