THIRD SECTION
DECISION
Application no. 47141/14
Yaw Simon NOMOAH
against Sweden
The European Court of Human Rights (Third Section), sitting on 17 November 2015 as a Committee composed of:
Dmitry Dedov, President,
Helena Jäderblom,
Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 24 June 2014,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this measure has been complied with,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Yaw Simon Nomoah, is a Ghanaian national who was born in 1994 and lives in Söderfors. He was represented before the Court by Mr B. Johansson, a lawyer practising in Stockholm.
The Swedish Government (“the Government”) were represented by their Agents, Ms C. Hellner Kirstein and Ms K. Fabian, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Sweden at some point in 2011 and applied for asylum and a residence permit. He was provided with a guardian ad litem as well as public legal counsel. In December 2011 the Migration Board (Migrationsverket) rejected the application as it did not find the applicant to be in need of international protection. Upon appeal by the applicant, the Migration Court (Migrationsdomstolen) upheld the Board’s decision in full. On 24 April 2012 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. The expulsion order thereby became enforceable.
The applicant then asked for reconsideration of his case before the Migration Board and asked the Board to stay the enforcement of the expulsion order. He stated that he had been diagnosed with ALS (Amyotrophic Lateral Sclerosis) and submitted a medical certificate dated 23 October 2013 from his doctor, a specialist physician working in the neurology clinic at the Uppsala University Hospital. The certificate stated that the applicant had been diagnosed with ALS, which would lead to paralysis and, inter alia, affect his ability to swallow and breathe. It also stated that his health was deteriorating rapidly, meaning that he would soon not be able to walk, talk or eat. His life expectancy was estimated at between two and three more years.
The Migration Board decided on 19 November 2013 provisionally to stay the enforcement of the expulsion order. It further asked the applicant’s doctor if it would be possible for the applicant to travel to Ghana and, if so, what actions would be required in order to carry out the transfer. In a certificate, dated 26 March 2014, the doctor refused to answer since she considered such a transfer to be unreasonable and inhumane, and it would therefore be unethical for her to give her opinion on the matter. She further stated that the applicant had very limited function in his hands and arms, which made daily activities hard for him. His ability to walk was severely affected and he had started to have clear difficulties in swallowing. He had respiratory problems at night.
On 27 May 2014, the Migration Board revoked the interim decision and refused to reconsider the case. It based its decision on the fact that, according to information from the Medical Advisors’ Office BMA, Immigration and Naturalisation Service in the Netherlands, it was possible to receive treatment for ALS in Ghana in the teaching hospitals in Accra, Kumasi and Tamale. However, it was not possible to have a ventilator at home, although these were available at hospitals. The medication the applicant needed could be obtained privately if necessary, within about one week. According to the Board, the fact that he might have to pay for the care himself did not mean that he should be granted a residence permit. No appeal lay against the decision.
Another request by the applicant for reconsideration of his case was rejected by the Migration Board, on 23 June 2014, as it found no reason to deviate from its previous decisions.
On 1 July 2014, following a request by the applicant, the Court decided to apply interim measures pursuant to Rule 39 of the Rules of Court until further notice. It further decided to communicate the case to the Swedish Government. On the following day, 2 July 2014, the Migration Board decided to stay the enforcement of the expulsion order against the applicant until further notice.
On 18 September 2015, upon request by the applicant for reconsideration of his case, the Migration Board granted him a permanent residence permit in Sweden. It found that, in view of his state of health, there were lasting medical impediments to the enforcement of the expulsion order.
COMPLAINT
The applicant complained under Article 3 of the Convention that, if he were forced to return to Ghana, he would not receive adequate medical treatment for his illness there and would die in the near future.
THE LAW
On 23 September 2015 the Government informed the Court of the Migration Board’s decision to grant the applicant a permanent residence permit in Sweden. They submitted that the matter had been resolved, since the applicant no longer faced a risk of being expelled to Ghana, and invited the Court to strike the case out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.
The applicant wished to maintain the application as he considered that the fear and anxiety caused to him by Sweden’s repeated refusals to grant him a residence permit amounted to a violation of Article 3 of the Convention, for which he wanted compensation.
The Court notes that the applicant has been granted a permanent residence permit in Sweden and thus will not be expelled to Ghana but will be able to remain legally in Sweden and benefit from continued medical care. In these circumstances, the Court finds that the matter has been resolved, within the meaning of Article 37 § 1 (b) of the Convention (see M.E. v. Sweden (striking out) [GC], no. 71398/12, §§ 32-35, 8 April 2015).
Moreover, in M.E. v. Sweden, the Court found that it did not need to enquire retrospectively into whether a real risk engaging the respondent State’s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused the applicant’s asylum requests, since these were historical facts but did not shed light on the applicant’s current situation, in which the impugned risk had been removed. It was this latter circumstance which was decisive for the Court’s finding that the matter had been resolved (ibid., § 36). The Court sees no reason to make another evaluation in the present case. Consequently, pursuant to Article 37 § 1 (c), it is no longer justified to continue the examination of the application.
Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and to strike the case out of the list of cases.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 10 December 2015.
Marialena TsirliDmitry Dedov
Deputy RegistrarPresident
Full & Egal Universal Law Academy