The complainant is Y.H., who claims to be a national of Eritrea born on 1 January 1979. The complainant’s application for asylum in Sweden3 has been rejected and he claims that his forcible removal to Ethiopia would amount to a violation by Sweden of article 3 of the Convention.4 To prevent irreparable harm, the complainant has urged the Committee to request that the State party take interim measures, namely, to refrain from removing him to Ethiopia while his communication is being considered by the Committee.5 The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 15 December 2008. The complainant is not represented by counsel.
- Application for a residence permit and work permit. ↩
- The Swedish Migration Agency decided to expel the complainant from Sweden. It also decided that the expulsion would be enforced by his removal to Ethiopia if the complainant could not show that some other country would accept him. He was given four weeks from the date of the decision to leave the country. ↩
- The date of deportation is unknown. ↩
On 22 January 2020, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party to refrain from returning the complainant to Ethiopia while the complaint was under consideration. On 12 May 2020, the State party requested the Committee to lift the request for the interim measures. On 15 June 2020, the Committee, acting through the same Rapporteur, decided to deny the State party’s request.
Facts as submitted by the complainant
The complainant had been fulfilling his mandatory military service in Eritrea when his brothers were killed in the war. For this reason, he decided to escape from military service. After a few days, members of the military went to his family’s house to look for him. He was arrested and subjected to torture in prison. On an unspecified date, he managed to flee from prison and, in January 2017, he arrived in the Sudan. In April 2017, he travelled from the Sudan to Libya and, in June 2017, he took a boat with other refugees to Italy. He reached Italy in June 2017, and was considered an illegal maritime arrival.
The complainant submitted an asylum request in Italy on 20 December 2017. Subsequently, he was accepted for relocation to Sweden, as the responsible member State in compliance with Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (Dublin III Regulation) and Council Decision (EU) No. 2015/1523 of 14 September 2015. He was relocated to Sweden in January 2018. On 16 January 2018, he applied for asylum in Sweden. On 5 March 2018, the Swedish Migration Agency decided to dismiss the complainant’s asylum application and expel him to Ethiopia. The complainant appealed the decision and, on 23 March 2018, the Migration Court referred the matter back to the Agency. On 4 May 2018, the Agency decided to reject his application.6
- In spite of the secretariat’s repeated requests, the complainant failed to submit a summary translation of the decisions of the domestic authorities. It is only alleged that the Swedish Migration Agency ruled that he had failed to present any official identification or other documents to prove that he was from Eritrea and, for unspecified reasons, that the authorities concluded that the complainant was a national of Ethiopia and ordered that he be deported to that country. No information has been submitted with regard to the reasoning behind the decision of the Agency or those of the appeal courts. The complainant submits that he left Eritrea illegally, without any official identification or other documents. ↩
On 28 June 2019, the Migration Court upheld the negative decision of the Swedish Migration Agency. The complainant appealed the court decision. However, the Migration Court of Appeal rejected his appeal on 18 December 2019, confirming that he should be deported to Ethiopia. This decision is final and enforceable.
The complainant claims that he has exhausted all available domestic remedies and that the same matter has not been pending before any other international mechanism.
Complaint
Relying on article 3 of the Convention, the complainant claims that he will be subjected to torture or inhuman or degrading treatment if deported to Ethiopia. He asserts that the Swedish authorities have erroneously presumed that he is a national of Ethiopia. The personal risk, if he is deported to Ethiopia, rests on the fact that he is a national of Eritrea.
As a national of Eritrea, he has no family or friends in Ethiopia. He claims that, especially as an Eritrean, he would be imprisoned in Ethiopia and, referring to the general prison conditions in Ethiopia, that he would be subjected to being tortured or killed.
Furthermore, if he were to be deported from Ethiopia to Eritrea, he is likely to be killed, as he escaped from military service after his two younger brothers were killed in the war and has already suffered torture and ill-treatment in prison at the hands of the Eritrean authorities. As regards prison conditions, the prevalence of torture has been attested to by numerous background reports.
State party’s observations on admissibility and the merits
On 12 May 2020, the State party submitted its observations on admissibility and the merits, recalling the main facts of the case and the complainant’s allegations before the Committee that his removal to Ethiopia would amount to a violation of his rights under article 3 of the Convention.
The State party requests that the interim measures be lifted, as the complainant’s cited grounds for international protection do not suffice to conclude that the enforcement of the expulsion order would constitute a violation of article 3 of the Convention. The State party underscores the absence of irreparable harm for the complainant if removed.
As regards the facts of the case, the State party refers to the translated summaries of facts in the Swedish Migration Agency decision of 4 May 2018 and the Migration Court judgment of 28 June 2019.
The complainant applied for asylum in Sweden on 16 January 2018. On 5 March 2018, the Swedish Migration Agency decided to dismiss his application and expel him to Ethiopia. The complainant appealed the decision and, on 23 March 2018, the Migration Court referred the matter back to the Swedish Migration Agency. As grounds for asylum, the complainant stated that he could not return to Eritrea because of a risk of being subjected to ill-treatment and persecution because he had abandoned military service and had subsequently left the country. He also stated that it was problematic for him to practise his Protestant Christian faith.
On 4 May 2018, the Swedish Migration Agency again dismissed the complainant’s asylum application7 and decided to expel him to Ethiopia. The Agency found that the complainant’s spouse was a citizen of Ethiopia. The complainant has not submitted any written evidence regarding his spouse or his relationship with her, including any evidence that his spouse is not entitled to stay in Ethiopia, that her Ethiopian citizenship has been withdrawn or that their marriage has been dissolved, nor has the complainant substantiated his assertion that he has not had contact with his spouse since 2017. As concerns the situation in Ethiopia, the Agency considered that the rights of refugees and migrants in Ethiopia were respected, as the country maintained an open-door policy with respect to its neighbouring countries and observed the principle of non-refoulement. The Agency found no indication of any mistreatment of people of Eritrean descent or that they would be particularly vulnerable to mistreatment by the Ethiopian authorities.8 The decision was appealed to the Migration Court, which, on 28 June 2019, rejected the appeal. The Migration Court found that, through his marriage to his spouse and their common children, the complainant had strong ties to Ethiopia.9 On 18 December 2019, the Migration Court of Appeal refused leave to appeal and the decision to expel the complainant became final and non-appealable.
- Application for a residence permit and work permit. ↩
- The Swedish Migration Agency further considered that the complainant would have the opportunity to apply for protection as a refugee in Ethiopia and that, in Ethiopia, he would be protected against being sent to Eritrea or any other country where he would risk treatment constituting grounds for protection. In addition, the Agency considered that there was no support for the claim that Eritreans who took part in the conflict were regarded as opponents by the Ethiopian authorities. Moreover, the Agency noted, on the basis of the complainant’s own account, that he had not served as a combat soldier but as a medical staff member. The complainant also stated that he intended, in the future, to travel to Ethiopia to look for his wife and his children. Overall, the Agency considered that the complainant had strong ties to Ethiopia, that he could apply for protection as a refugee there and that, in that country, he would not risk being subjected to treatment constituting grounds for protection or being sent to a country where he would risk such treatment. The Agency therefore decided that the complainant’s application for asylum would not be examined in Sweden and issued an expulsion order against him. ↩
- The complainant stated before the Migration Court that his spouse was in contact with his parents. The complainant’s assertions that his spouse no longer intended to live with him or that she had left their children with the complainant’s parents did not give rise to any other assessment by the asylum authorities. In this respect, the Migration Court noted that the complainant had not submitted any evidence in support of the dissolution of their marriage. A mere assertion on his part that their relationship had ended was not considered sufficient grounds to consider that his asylum application should be examined in Sweden. The Migration Court considered Ethiopia to be a secure third country for the complainant and rejected the complainant’s appeal. ↩
Following the Committee’s request of 22 January 2020, the Swedish Migration Agency decided, on the same date, to stay the enforcement of the complainant’s expulsion order until further notice, pursuant to the Aliens Act. The Agency took into consideration the special ties of the complainant to Ethiopia as a third safe country due to his marriage to a citizen of that country.
The complainant claims that the Swedish migration authorities decided to expel him to Ethiopia as they considered him to be a national of Ethiopia. This claim is clearly incorrect, which is apparent from the appended rulings. Moreover, the complainant gives no account of the reasons of the migration authorities for finding that he should be expelled to Ethiopia. The complainant appears to have misled the Committee on crucial facts concerning the complaint, including why the Swedish migration authorities concluded that he should be expelled to Ethiopia. The State party therefore invites the Committee to consider whether the communication should be declared inadmissible as an abuse of the right of submission under article 22 (2) of the Convention.10
- See for example Salem v. Tunisia (CAT/C/39/D/269/2005), para. 8.4, and European Court of Human Rights, Bencheref v. Sweden, Decision No. 9602/15, 11 January 2018. ↩
In addition, the State party is not aware whether the same matter has been or is being, examined under another procedure of international investigation or settlement; whether it should be ascertained by the Committee. It does not contest the fact that all available domestic remedies have been exhausted in the present case.
However, the State party maintains that the complainant’s assertion that he is at risk of being treated in a manner that would amount to a breach of article 3 of the Convention if expelled to Ethiopia fails to rise to the minimum level of substantiation required for the purposes of admissibility. It accordingly submits that the communication is manifestly unfounded and thus inadmissible pursuant to article 22 (2) of the Convention.11
- See rule 113 (b) of the Committee’s rules of procedure and H.I.A. v. Sweden (CAT/C/30/D/216/2002), para. 6.2. ↩
As to the merits, the State party recalls the Committee’s views whereby it has been confirmed that the Committee is not an appellate, quasi-judicial or administrative body and that considerable weight will be given to findings of facts made by bodies of the State party concerned.12 Moreover, the Committee has held that it is for the courts of the State party to the Convention, and not for the Committee, to evaluate the facts and evidence in a particular case, unless it can be ascertained that the manner in which such facts and evidence were evaluated was clearly arbitrary or amounted to a denial of justice.13
The State party maintains that the communication does not contain any relevant new circumstances that have not already essentially been assessed by the domestic authorities. Moreover, the complainant has not shown that there is any reason to conclude that the rulings by the domestic authorities were inadequate or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a denial of justice. Therefore, the State party refers to the appended decision and judgment of the Swedish migration authorities in support of its assertion that the return of the complainant to Ethiopia would not entail a violation of article 3 of the Convention.
In conclusion, the State party reiterates that the communication should be declared inadmissible due to an abuse of the right of submission and it holds, at any rate, that the communication should be declared inadmissible as manifestly unfounded. As regards the merits, the State party maintains that the communication reveals no violation of the Convention.
Complainant’s comments on the State party’s observations on admissibility and the merits
On 16 May 2020, the complainant responded that he had submitted several documents, including an Eritrean identity document, to the Swedish asylum authorities in order to prove that he was a national of Eritrea and that part of his family still lived in Eritrea, while his sister and many other relatives, who could attest to his nationality, had been living in Sweden for more than five years.14
- It has been noted that, according to the court documents and the State party’s submission, it has never been disputed that the complainant is a national of Eritrea, but it was assumed that, through his Ethiopian wife, the complainant had strong links and ties with Ethiopia. The State party’s authorities therefore held, in the context of examining his asylum request and the negative decision thereon, that the complainant could be removed to Ethiopia, as a safe third country. ↩
The complainant reiterates that he is a national of Eritrea and that his rights would be violated if he were removed to a country in which he has never lived. Furthermore, he asserts that since he took part in the war between Eritrea and Ethiopia, he cannot be removed to either of those countries. Moreover, the complainant asserts that he has no right to live in Ethiopia.
The complainant adds that he has explained to the asylum authorities all his suffering due to imprisonment and the unlimited military service that he was obliged to perform in Eritrea.
In addition, he submits that, because of the denial of his asylum application, he has been experiencing other violations of his rights, as he cannot obtain a work permit or enjoy access to language courses or discounted fees for transport services.15
- It should be noted that the complainant failed to address the most relevant parts of the new information submitted by the State party. The complainant does not dispute that he has a wife living in Ethiopia and has failed to provide any information about his children, whose whereabouts have not been ascertained. There is no evidence of the dissolution of his marriage or of the nationality of his wife or lack thereof and he does not dispute the fact that his involvement in the conflict between Eritrea and Ethiopia was as a medical staff member and not a combatant. The complainant has not submitted any further comments on the State party’s observations as to the admissibility or the merits of the case. ↩
State party’s additional observations on admissibility and the merits
On 17 February 2021, the State party submits that the complainant’s additional comments do not include any new information but are rather, a resubmission of existing documents. It emphasizes that it fully maintains its position regarding the admissibility and the merits of the present complaint as expressed in its observations of 12 May 2020. The Government again requests the Committee immediately to lift the request for interim measures, as argued previously.
In view of the above, the State party is of the opinion that no further correspondence should be necessary. It requests the Committee to consider the admissibility and the merits of the present communication as soon as possible.
Consideration of admissibility
Before considering any complaint contained in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.
In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any complaint from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes the State party’s submission that it does not contest the fact that all available domestic remedies have been exhausted in the present case.
The issue before the Committee is whether the forcible removal of the complainant to Ethiopia, where he fears that he will face torture or other ill-treatment, persecution or risk to life, would constitute a violation of the State party’s obligations under article 3 of the Convention.
The Committee recalls that, for a communication to be admissible under article 22 of the Convention and rule 113 (b) of its rules of procedure, it must not amount to an abuse of the right of submission of such communication and it must rise to the basic level of substantiation required for purposes of admissibility.
In this connection, the Committee notes the State party’s argument that the complainant appears to have misled the Committee on crucial facts, thereby abusing his right to file a communication with the Committee, since he incorrectly asserted that the Swedish migration authorities decided to expel him to Ethiopia as they considered him a national of Ethiopia and as he provided no account of the migration authorities’ reasons for finding that he should be expelled to Ethiopia. The Committee observes that the complainant did not provide the summary translation of the decisions of the asylum authorities, but only succinct information in English on the main rulings, without their reasoning, and that the decisions attached in support of his allegations were provided only in Swedish. In view of the fact that the complainant is not represented and giving him the benefit of the doubt, the Committee is not in a position to conclude that his initial communication, as complemented on 4 January 2020, amounted to an abuse of the right of submission under article 22 (2) of the Convention.
The Committee further notes the State party’s objection that the complainant’s assertion that he is at risk of being treated in a manner that would amount to a breach of article 3 of the Convention if expelled to Ethiopia fails to rise to the minimum level of substantiation. The Committee notes that, according to the court documents submitted by both parties and the State party’s submission, it has never been disputed that the complainant is a national of Eritrea, but that the conclusion that the complainant had sufficient ties to Ethiopia was based on his links through his Ethiopian wife and their common children. The State party’s authorities therefore held, in the context of examining his asylum application and the negative decision thereon, that the complainant could be removed to Ethiopia, that he could eventually seek refugee or asylum status in Ethiopia and that, in Ethiopia, the complainant would not risk being subjected to treatment constituting grounds for protection or being sent to a country where he would risk such treatment. In that context, the Committee observes that the complainant failed to address the most relevant parts of the information submitted by the State party, including the lack of a personal or present risk of torture or other ill-treatment in Ethiopia. The complainant does not dispute that he has a wife living in Ethiopia and has failed to provide any information about his children. In addition, the Committee notes that the complainant has failed to submit any evidence of the dissolution of his marriage or of the nationality of his wife or lack thereof and he does not dispute the fact, raised by the State party, that his involvement in the conflict between Eritrea and Ethiopia was as a medical staff member and not a combatant. The complainant does not offer any clarification as to the inconsistencies in his submission of facts. The Committee observes that the possibility of the alleged risk of torture or other ill-treatment in the country to which he is to be deported, let alone any consequences that might follow if he is removed to Ethiopia, has not been sufficiently substantiated for the purpose of admissibility.
Lastly, the Committee notes that the Swedish Migration Agency provided the complainant with ample opportunity to substantiate his claims by interviewing him several times and examining his alleged impediments to enforcement of the expulsion order. The Committee observes that the complainant has not provided additional evidence that would cast doubt on the findings of or the factual evaluation made by the Agency, the Migration Court and the Migration Court of Appeal.
The Committee therefore considers that the complainant’s claims fail to rise to the basic level of substantiation required for purposes of admissibility and concludes, in accordance with article 22 of the Convention and rule 113 (b) of its rules of procedure, that the communication is manifestly unfounded and is therefore inadmissible.
The Committee therefore decides: (a) That the communication is inadmissible under article 22 of the Convention;