Published on 15 July 2024
FIRST SECTION
Application no. 31218/23
M.M. and A.M. against Sweden
lodged on 7 August 2023
communicated on 25 June 2024
SUBJECT MATTER OF THE CASE
The case concerns the deportation of the applicants to Afghanistan following their unsuccessful requests for asylum in Sweden.
The applicants are brothers, born in 2000 and 2003 respectively, both Afghan nationals of Hazara origin. In 2015 they arrived in Sweden, together with their parents and sisters, and the whole family requested asylum. The Swedish authorities refused their request and ordered their deportation in a decision which became final on 22 October 2020.
In December 2021 the applicants were granted new examinations, due to changed circumstances following the Taliban takeover in Afghanistan. In these new proceedings the applicants’ requests for asylum were refused and the previous deportation order thus remained in force. In separate proceedings the applicants’ mother and sisters were granted refugee status and residence permits in Sweden. Their father’s case is pending.
In July 2023 the applicants applied to the Swedish authorities, claiming that there were impediments to the enforcement of the deportation order, relying on alleged risks they faced upon return and their ties to Sweden and their family. The authorities found that there were no new circumstances which amounted to impediments to enforcement and thus decided not to grant the applicants residence permits.
The applicants complain that, if they were to be deported, they would face a risk of being subjected to treatment in breach of Article 3 of the Convention due to, among other things, being Shia Muslims of Hazara ethnicity, their lack of knowledge of Afghan society and language and the fact that they had adapted to a “Westernised way of life”. Furthermore, they complain that their deportation would be in breach of their right to respect for private and family life under Article 8 of the Convention.
The applicants’ request for an interim measure under Rule 39 of the Rules of Court was granted by the Court on 16 November 2023.
QUESTIONS TO THE PARTIES
1. In the light of the applicants’ claims, the documents which have been submitted and relevant country information on Afghanistan, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if the deportation order were to be enforced?
In particular, would they face such a risk on account of their Hazara origin, alone or in combination with any further individual circumstances, taking into consideration recent country information regarding the situation in Afghanistan for individuals of Hazara ethnicity and individuals perceived as influenced by foreign values (see, for example, UN High Commissioner for Refugees (UNHCR), Guidance Note on the International Protection Needs of People Fleeing Afghanistan (Update I), February 2023, § 16 (iv), and European Union Agency for Asylum (EUAA), Country Guidance: Afghanistan 2024, 17 May 2024, Common analysis, sections 3.13 and 3.14.2)?
2. Given the specific circumstances of the case, is there “family life” within the meaning of Article 8 of the Convention between the applicants and their parents and sisters (see, for example, see Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003-X; Osman v. Denmark, no. 38058/09, § 55, 14 June 2011; and Pormes v. the Netherlands, no. 25402/14, § 47, 28 July 2020)?
Did the refusal to grant the applicants residence permits entail a violation of the applicants’ rights to respect for their family life and/or private life contrary to Article 8 of the Convention?
Did the competent domestic authorities and courts sufficiently examine that question, taking into account all relevant elements?