ECtHR: Grand Chamber M.E. v Sweden and Grand Chamber W.H. v. Sweden
These case notes were originally printed in the ELENA Weekly Legal Update of 10 April 2015 and on the EDAL website. Commentary is provided by Kuldip Phull and reprinted here with permission.
Both cases concern appellants seeking asylum in Sweden. Both were granted permanent stay in Sweden for reasons other than those stated in their original claim.
ECtHR: Grand Chamber M.E. v Sweden (Application no. 71398/12) [Articles 3 and 8], 8 April 2015
Following from the majority judgment in June rejecting the applicant’s complaint that return from Sweden to Libya would expose him to a risk of persecution based on his homosexuality, the Grand Chamber has decided to strike out the application in accordance with Article 37 § 1(b) of the Convention.
Regarding the developments that had taken place since the Court's judgment, the Grand Chamber makes specific reference to the Migration Board’s decision to grant the applicant a permanent residence permit. This decision was rendered by the Board following a deterioration of the security situation in Libya, owing to continuous political instability which appears to be unwavering. Against this background and a new domestic legal comment concerning the situation in Libya, the Migration Board found that the deterioration in security alongside the applicant’s homosexuality constituted a new circumstance. This subsequently led to the finding that, if returned, the applicant would be subjected to persecution on account of his homosexuality.
Whilst the Swedish government requested that the Grand Chamber strike out the application in line with Article 37 para 1 of the Convention, the applicant conversely requested the application to be maintained, given that the matter of whether Sweden had breached Article 3 by its previous decisions had not been resolved. Similarly, the correctness of the previous Chamber’s reasoning had yet to be examined. Additionally, the applicant noted the pertinent human rights issues at stake in the judgment, notably rights of homosexuals in asylum cases, which required a continued examination.
Noting that Sweden’s own motion to grant a permanent residence permit to the applicant had effectively repealed the previous expulsion decision and, consequently, the threat of an Article 3 violation, the Grand Chamber found, in line with previous jurisprudence, (O.G.O. v. the United Kingdom) that the applicant no longer risked being expelled from Sweden. Accordingly, the matter had been resolved within the meaning of Article 37 § 1 (b) of the ECHR.
Indeed, the Court found that the Migration Board had taken the applicant’s homosexuality into account when finding that, due to the deterioration of security, the applicant would be at risk of persecution “since he lived openly as a homosexual and could be expected to continue doing so on his return.” Advancing that there was no need to retrospectively examine Sweden’s responsibility under Article 3, the Court additionally surmised that there were no special circumstances relating to human rights that required an ongoing examination of the case. The Court, thus, decided to strike the case out of its list.
ECtHR: Grand Chamber W.H. v. Sweden (no. 49341/10) [Article 3], 8 April 2015
The Grand Chamber has issued its second decision concerning Sweden and has, similarly, struck the case out of its list under Article 37 § 1 (b) of the ECHR. The Court’s previous judgment refused to find a violation of Article 3 if a single woman member of a religious minority, were to be sent back to Southern and Central Iraq.
The Grand Chamber’s finding comes after the Migration Board’s decision to grant the applicant a permanent residence permit in Sweden. While the Board did not consider the applicant as a refugee, the permit was issued in light of the general security situation in Baghdad as well as the applicant’s gender, religion and a lack of social network in Iraq. Conversely to what the ECtHR had previously found, the Board stated that internal relocation was not an alternative for the applicant given the high numbers of Iraqis fleeing to the Kurdistan Region within the space of a few months.
On account of the Migration Board’s decision to grant a permanent residence permit as well as the applicant’s desire to discontinue the application in front of the Grand Chamber, the Court struck out the application in accordance with Article 37 § 1 (a) and (b) of the ECHR.
