The authors of the communication are S.R. and her daughter Z.R., nationals of Kosovo born on 19 November 1984 and 3 August 2003 respectively. The authors claim that by deporting them to Kosovo, the State party would breach Z.R.’s rights under articles 10 and 15 of the Convention. The Optional Protocol entered into force for the State party on 14 January 2009. The authors are represented by counsel.
On 22 December 2021, the Committee, acting through its Special Rapporteur on new communications and interim measures, under article 4 of the Optional Protocol, requested the State party to refrain from removing the authors to Kosovo and from separating Z.R. from S.R. while their communication was under consideration by the Committee. On the same day, the Swedish Migration Agency suspended the authors’ removal until further notice.
Factual background[[fn:4]]
The authors originate from the Roma minority in Kosovo. On an unspecified date in 2012, they fled to Sweden together with their family members after having been exposed to discrimination, violence, threats and harassment due to their ethnicity. S.R. was raped by several men in Kosovo. Z.R. was also sexually abused. The authors have since lived irregularly in Sweden, except for a short period in spring 2018 when they were deported to Kosovo together with their family members.
The authors note that Z.R. has a severe mental illness due to her traumatic experiences in Kosovo. According to medical certificates, Z.R. has been suffering from resignation syndrome, also known as traumatic withdrawal syndrome, for over eight years, causing her to be in an apathetic state throughout her teenage years. Her chronic dissociation causes her to hear voices and withdraw from reality, depression, and a high level of anxiety. Thus, she fulfils the diagnostic criteria for chronic complex post-traumatic stress disorder. Z.R. requires advanced psychiatric care to resume her psychosocial development and to prevent her mental state from becoming chronic.5 Doctors have stated that she can only benefit from such care if she lives in safe and stable social conditions. The authors refer to several medical certificates stating that “basic preconditions” for the surgery, namely that Z.R. should have a “sense of trust and security”, cannot be realized in Kosovo, where her post-traumatic stress syndrome would be expected to worsen.
- The authors provide copies of the following medical certificates, which they submitted in the domestic procedures: four medical certificates by Lars Joelsson, specialist in paediatrics and adolescent medicine, dated 16 June 2014, 24 September 2014, 30 January 2015 and 17 January 2018; a medical certificate by Bo Lindahl, chief physician, dated 22 January 2015; a medical certificate by Per Petersen, chief physician, dated 5 February 2016; a medical certificate by Ragnar Ang, chief physician at the Child and Young Persons’ Clinic/Surgery, dated 16 February 2016; a medical certificate by Anna Lebedo, surgery specialist at Norra Regional Hospital, dated 20 March 2017; two medical certificates by Afshin Noorani, Senior Physician, Surgery Department at Norra Älvsborgs Länssjukhus, dated 5 April 2019 and 11 March 2020; three medical certificates by Henry Ascher, professor, and senior physician at the Child Refugee Ward, Specialist Centre for Children and Adolescents, Gamlestaden Angereds Närsjukhus, dated 1 April 2019, 10 July 2020 and 12 January 2021; and two medical certificates by Helena Borg, chief physician for paediatric surgery, dated 1 and 8 November 2019. ↩
On 10 September 2012, the authors and their family members applied for asylum, claiming a risk of being subjected again to discrimination, violence and harassment due to their ethnicity in case of return to Kosovo. They noted that Z.R. had epilepsy and that she had begun to develop a severe mental illness, possibly post-traumatic stress disorder. On 30 May 2013, the Swedish Migration Agency denied their applications, finding that the Kosovar authorities were willing and able to protect them against abuse. It noted that there were no medical records of Z.R.’s epilepsy or mental illness. On appeal, the authors submitted such records. On 7 March 2014, the Migration Court rejected their appeal and confirmed the Migration Agency’s assessment that the domestic authorities in Kosovo could protect them. Regarding Z.R.’s state of health, the Migration Court considered that it had not emerged that providing her with treatment and a residence permit in Sweden would lead to a significant and lasting health improvement, or that treatment would not be available to her in Kosovo. In this regard, the Migration Court noted that Z.R. had previously received treatment in Kosovo that had been effective. On 12 April 2014, the Migration Court of Appeal decided not to grant leave to appeal.
After the authors’ expulsion order became final, they applied for residence permits on the basis of impediments to the enforcement of the deportation orders three times, claiming that Z.R. would not be able to obtain the required treatment in Kosovo. The authors submitted medical certificates noting that Z.R. had lost many of her functions, that she required diapers and could not control her bowel movements or urine due to a “deep” depression and posttraumatic stress disorder. On 3 October 2014, 10 March 2015 and 18 December 2015, the Swedish Migration Agency rejected the authors’ subsequent applications for residence permits based on alleged impediments to the enforcement of the deportation orders, finding that Z.R.’s health condition did not constitute such an obstacle, and that it had not emerged that she would not be able to receive healthcare in Kosovo.
In January 2016, Z.R.’s appendix ruptured due to appendicitis. However, because of the state of her mental health, she did not show any pain. This resulted in a life-threatening condition requiring long-term and advanced intensive care, and in complicated sequelae with serious functional impairments that continue to affect her life. Z.R. spent three weeks in intensive care and was then moved to a paediatric ward. Z.R. lacks abdominal musculature, which has resulted in severe constipation. In turn, this has affected her appetite. Her abdominal scars due to the operations and the infection pose a significant risk of ileus, a painful condition that may require urgent surgery. The authors refer to medical certificates according to which Z.R. should have her abdomen reconstructed, which involves advanced surgery. The certificates state that there is “cause for concern for her life” and a “reduced life expectancy” if the reconstruction, which involves “advanced surgery”, cannot be performed. The authors refer to several medical certificates stating that “basic preconditions” for the surgery, namely that Z.R. should have a “sense of trust and security”, cannot be realized in Kosovo, where her post-traumatic stress syndrome would be expected to worsen. For a successful outcome, she should first feel significantly better mentally. Therefore, the psychiatric care should precede the abdominal reconstruction. In addition, Z.R. has an epileptic condition that requires medication. According to the medical certificates, she can be provided with the necessary healthcare in Sweden if granted a residence permit.
On 3 February 2016, the authors informed the Swedish Migration Agency that Z.R. had undergone emergency surgery and that she was expected to require advanced medical care for at least six months, including because she had an open abdomen following the operation. On 4 February 2016, the Migration Agency decided not to grant Z.R. a residence permit. However, following a new application for a residence permit claiming impediments to the enforcement of the removal order, the Migration Agency decided on 1 March 2016 to suspend the family’s removal. On 11 October 2016, the Migration Agency revoked this decision, considering that Z.R.’s health condition was a temporary impediment to the enforcement of the removal orders and that the six-month period for recovery had passed. On 6 December 2016, following a subsequent application for residence permits citing impediments to the enforcement of the removal orders based on Z.R.’s state of health, the Migration Agency decided to suspend the enforcement of the removal orders again. On 12 June 2017, the Migration Agency revoked that decision. The Migration Agency reiterated that it had not emerged that care would not be available to Z.R. in Kosovo and that she had previously been treated there effectively. The Migration Agency also noted that Z.R. had relatives in Kosovo and that she had spent most of her life there. On 23 February 2018, the Migration Agency rejected a subsequent application claiming impediments to the enforcement of the removal orders.
On 23 February 2018, the authors and their family members were deported to Kosovo, where they were again subjected to violence, intimidation and harassment. Z.R.’s health condition worsened and she was denied medical treatment. The authors note that after several months, they returned to Sweden together with Z.R.’s siblings.
On 8 June 2018, the authors reapplied for asylum in Sweden, claiming that Z.R.’s return to Kosovo would result in a serious risk to her life and health. They submitted additional medical certificates regarding the treatment Z.R. required and the reasons why she would be unlikely to benefit from psychiatric healthcare in Kosovo, and country information indicating that the Roma population in Kosovo was discriminated against and had significantly worse access to healthcare. The authors argued that medical country-of-origin information previously obtained by the Swedish Migration Agency on Z.R.’s case did not show that the required healthcare was accessible or available. On 20 and 30 January 2020 respectively, the Migration Agency rejected the applications from Z.R. and from S.R. The Migration Agency found that Z.R. could receive medical care in Kosovo and that nothing showed that she belonged to a group that could not receive such treatment there. The Migration Agency noted that members of the Roma minority in Kosovo had the same rights as other citizens and that domestic law enforcement authorities were able and willing to provide protection, including to minority groups.
On appeal, the authors argued that the Swedish Migration Agency had not sought to receive guarantees that Z.R. would receive the required healthcare in Kosovo despite the discrimination against the Roma population in Kosovo. The authors argued that Z.R. required highly specialized, advanced and coordinated care in several areas, and that the medical country-of-origin information did not show the existence or accessibility of such care in Kosovo.6 They submitted additional medical certificates confirming Z.R.’s “very poor” and “uniquely special” psychiatric and somatic state and her need for specialist competence in terms of paediatric psychiatric treatment of complex trauma with dissociation, resignation syndrome, sexual assault of children, advanced constipation issues in children, and reconstructive surgery of the abdominal wall after an extended period of dysfunction. The certificates highlighted the need for well-established and close channels of cooperation between specialists, in the absence of which the treatment would fail.
- The authors referred to the judgment of the European Court of Human Rights in Paposhvili v. Belgium, application No. 41738/10, 13 December 2016; and Savran v. Denmark, application No. 57467/15, 7 December 2021. ↩
On 23 November 2020, the Swedish Migration Court rejected the authors’ appeal, finding that it had not been established that Z.R. was at a real risk of being exposed to a serious, rapid and lasting deterioration of her health if she returned to Kosovo. The Migration Court acknowledged that Z.R. had a serious health condition but found that it did not follow from the medical information submitted that her condition was life-threatening. The Migration Court noted that one of the medical certificates stated that the necessary operations could not be performed until she was a fully-grown adult. The authors note that, by contrast, several other certificates indicated she was ready for surgery. The Migration Court noted that the medical country-of-origin information showed that reconstructive plastic surgery, gastrointestinal surgery, paediatric psychiatric treatment and the necessary medication were available in Kosovo. It found that even taking into account her need for organized treatment, it had not been demonstrated that Z.R.’s return to Kosovo would pose any real risk that she would suffer a serious, rapid and permanent decline in her health. The Migration Court noted that the authors’ claim that Z.R. had been denied treatment in Kosovo in 2018 did not change its assessment.
On appeal before the Migration Court of Appeal, the authors submitted an additional medical certificate as well as a letter by a former Member of the European Parliament.7 On 5 February 2021, the Migration Court of Appeal decided not to grant leave to appeal. On 1 December 2021, the Swedish border police arrested S.R. and put her under supervision.
- The letter stated that the Roma minority in Kosovo suffers from anti-Romani sentiments and a lack of respect for human rights; that Roma returnees to Kosovo whose asylum applications were rejected, specifically single mothers with children, are particularly vulnerable; and that specialized healthcare for members of the Roma minority requires financial resources in addition to identification documents, which the authors do not have. ↩
Complaint
The authors claim that by deporting Z.R. to Kosovo, the State party would breach her rights under articles 10 and 15 of the Convention, as it would result in a real risk of being exposed to a serious, rapid and lasting deterioration in her state of health because she would not be able to access or benefit from the required healthcare. They also claim that the State party would breach Z.R.’s rights under articles 10 and 15 of the Convention by deporting S.R. to Kosovo as she is Z.R.’s primary caregiver and Z.R. would not survive without her.
The authors argue that the medical certificates presented to the Swedish authorities establish that Z.R. has a life-threatening condition for which she requires long-term, advanced, specialized and coordinated healthcare. She is expected to recover fully if granted a residence permit in Sweden. However, in the absence of adequate care, her condition has deteriorated and will continue to deteriorate significantly, and she would not recover or become independent.
According to the authors, the medical country-of-origin information obtained in 2019 by the Swedish Migration Agency does not show that adequate healthcare would be available and accessible to Z.R. in Kosovo. They assert that members of the Roma minority and women suffer from discrimination and limited access to healthcare. Basic treatment “in several areas” required by Z.R. exists in Kosovo, but the country information does not state whether the required specialized competence and ability to coordinate between different healthcare providers exist, or whether there is experience with treating persons with resignation syndrome. The country information does not show whether Z.R. could access the required care in Kosovo, and neither the Swedish Migration Agency nor the Migration Court has analysed her “actual chances” of receiving healthcare in Kosovo considering that she is a woman and a member of the Roma minority. Given these real doubts as to whether Z.R. can receive adequate care in Kosovo, the State party should have obtained individual guarantees from the Kosovar authorities.
The authors argue that, pursuant to article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), it must be considered that the State party decided to expel Z.R. when she was a child, as a lower threshold applies for children to fall within the scope of the said provision.8 They claim that States have a greater responsibility for ensuring that healthcare required by specific persons is available to children.
- European Court of Human Rights, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (application No. 13178/03), judgment of 12 October 2006, paras. 51 and 55. ↩
State party’s observations on admissibility and the merits
In its observations of 8 July 2022, the State party notes that the authors claim that Z.R. would be exposed to certain treatment upon return to Kosovo, and that the only conduct by an authority of the State party of which they complain is the decision to expel them. The State party understands that the principle of extraterritorial effect would not prevent the Committee from examining the communication under article 1 of the Optional Protocol.9 The State party submits that the authors’ claims of violations based on their ethnicity do not concern Z.R.’s disability and are consequently inadmissible ratione materiae under article 1 of the Optional Protocol.
- O.O.J. v. Sweden (CRPD/C/18/D/28/2015); and N.L. v. Sweden (CRPD/C/23/D/60/2019). ↩
The State party submits that the communication is inadmissible as insufficiently substantiated under article 2 (e) of the Optional Protocol. The State party notes that pursuant to the jurisprudence of the Human Rights Committee, the obligation under the International Covenant on Civil and Political Rights not to extradite, deport, expel or otherwise remove a person from a State party’s territory where there are substantial grounds for believing that there is a real risk of irreparable harm entails that the risk must be the necessary, foreseeable and personal consequence of the forced return. The State party also notes that according to the Human Rights Committee, there is a high threshold for establishing such a risk, and considerable weight should be given to the assessment conducted by the State party. Moreover, it is generally for the organs of the States parties to the Covenant to review or evaluate the facts and evidence in order to determine whether a real risk of irreparable harm exists, unless it is found that the evaluation was clearly arbitrary or amounted to a manifest denial of justice.
The State party notes that, in the present case, the migration authorities evaluated the human rights situation in Kosovo in relation to the authors’ circumstances and found that they had not substantiated their claim that they require international protection due to the general situation there, notwithstanding concerns that may be legitimately expressed regarding the situation of the Roma minority. In addition, the State party submits that the authors have not substantiated their claim that Z.R. would run a personal risk of treatment contrary to articles 10 and 15 of the Convention upon return to Kosovo. The State party notes that its domestic legislation reflects the same principles as those laid down in the said provisions. The State party argues that its domestic authorities are well placed to assess the information and evidence submitted by an asylum-seeker. In the present case, the migration authorities duly examined the authors’ claims and evidence on several occasions, including Z.R.’s health condition. The State party argues that there is no reason to conclude that the domestic decisions were inadequate or that their outcome was in any way arbitrary or amounted to a denial of justice. Therefore, considerable weight should be attached to the opinions of the domestic authorities.
The State party observes that pursuant to treaty body jurisprudence, a medical condition must be of an exceptional nature for it to trigger the obligation of nonrefoulement,10 and the aggravation of a person’s health by virtue of a deportation is generally insufficient to amount to degrading treatment.11 The State party observes that in Paposhvili v. Belgium, the European Court of Human Rights noted that only very exceptional circumstances may raise issues under article 3 of the European Convention on Human Rights in this regard, including situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.12 The State party invites the Committee to adopt a similar approach to claims made under article 15 of the Convention, which cannot oblige States parties to alleviate disparities in the level of treatment available in the sending State compared to that of the receiving State.
- Z. v. Australia (CCPR/C/111/D/2049/2011), para. 9.5. ↩
- G.B.R. v. Sweden (CAT/C/20/D/83/1997), para. 6.7; T.M. v. Sweden (CAT/C/31/D/228/2003), para. 6.2; and Y.G.H. and others v. Australia (CAT/C/51/D/434/2010), para. 7.4. ↩
- European Court of Human Rights, Paposhvili v. Belgium (application No. 41738/10), judgment of 13 December 2016. ↩
With regard to children with health problems in the framework of article 3 of the European Convention on Human Rights, the State party notes that in Hukić v. Sweden, the European Court of Human Rights does not appear to have changed the starting point of its reasoning considering that the applicant with an illness was a child.13 The State party argues that, in the present case, no separate issues arise under article 10 of the Convention. The State party notes that, in the present case, its domestic authorities examined whether Z.R., as a child, would risk being subjected to inhuman or degrading treatment upon return to Kosovo in contravention of article 3 of the European Convention on Human Rights and the Convention on the Rights of the Child. They also examined whether there were any particularly distressing circumstances under the Aliens Act that would render the authors’ expulsion contrary to Swedish international obligations, considering Z.R.’s state of health, her adaptation to Sweden and the situation in her country of origin. The Swedish Migration Agency found that according to the medical country-of-origin information, the required hospital care, medication and psychiatric care for post-traumatic stress disorder, including as resulting from sexual assault, are accessible in Kosovo. The Migration Agency considered that nothing had emerged to plausibly demonstrate that Z.R. would not be able to access the necessary medical and psychiatric care due to her membership of the Roma minority. The Migration Agency considered that the mere circumstance of lacking financial resources or the difference in the quality of healthcare between Sweden and Kosovo could not exhaustively explain why Z.R. could not access healthcare in Kosovo. It also considered that there were no individual circumstances in Z.R.’s case constitutive of exceptional circumstances in the framework of article 3 of the European Convention on Human Rights. The Migration Court made the same assessment, noting that it had not been shown that Z.R.’s health condition had “deteriorated in any serious way” after she returned to Kosovo in 2018. Considering her need for coordinated care, the Migration Court found that it had not been demonstrated that, upon return to Kosovo, she would run a real risk of being subjected to a serious, rapid and lasting decline in her state of health. The Migration Court considered that she would have access to care and support from her family.
- European Court of Human Rights, Hukić v. Sweden (application No. 17416/05), decision on admissibility. ↩
The State party does not wish to underestimate Z.R.’s ill-health, but finds that the authors have not advanced substantial grounds for believing that she would face a real risk, on account of the absence of appropriate treatment in Kosovo or being denied access to such treatment, of being exposed to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or in a significant reduction in life expectancy. The authors have therefore not shown that Z.R.’s medical condition is of such an exceptional nature that her removal to Kosovo would violate article 15 of the Convention. The State party argues that no separate issues arise under article 10 of the Convention.
Authors’ comments on the State party’s observations
In their comments dated 22 June 2023, the authors argue that they claim a breach of articles 10 and 15 of the Convention because Z.R.’s health condition would deteriorate upon return to Kosovo, not because they are Roma. According to the authors, the State party has not addressed their concerns that the medical country-of-origin information does not show that the specific and specialized healthcare that Z.R. requires is available and accessible. The migration authorities also failed to make an overall assessment of Z.R.’s case or of her possibilities of accessing the required care in Kosovo, which, they argue, constitutes a manifest error.
The authors refer to a medical certificate according to which Z.R. is in a long-term state of maximum traumatic stress, anxiety, depression, and resignation syndrome, has chronic constipation that is hard to treat, and probably recurring bouts of ileus because of her lack of abdominal musculature and scar tissue in her abdomen following repeated ulcerous abdominal infections and surgical interventions. General mental, social and developmental changes have not occurred in the eight years that Z.R. has had resignation syndrome. The authors emphasize that the migration authorities lack medical competence and that the drafters of the medical certificates are mostly specialists.
The authors assert that they have shown that Z.R. had no access to healthcare in Kosovo after she was returned there in 2018 and that this led to a deterioration of her health, as S.R. and one of Z.R.’s siblings explained this to the Swedish Migration Agency, and that this assertion is supported by medical certificates and country information. Moreover, she would not be able to benefit from healthcare in Kosovo as she was traumatized there.
According to the authors, the State party has disregarded country information that the Roma population in Kosovo is systematically discriminated against, that their access to healthcare, particularly for women, is generally poor, and that Z.R. would not have access to the specialized healthcare that she requires, contrarily to the jurisprudence of the European Court of Human Rights in Paposhvili v. Belgium that all factors that may affect an individual’s effective access to care must be considered. The authors reiterate that, upon return to Kosovo, Z.R. would face a real risk of being subjected to a serious, rapid and irreversible deterioration of her health, resulting in intense suffering because of lack of appropriate treatment or because of a denial of access to such treatment. According to the authors, the domestic authorities should have therefore verified whether the care generally available in Kosovo is sufficient and appropriate for Z.R. and to what extent she would have access to such healthcare, but they failed to do so. The authors argue that serious doubts persist about the impact of their removal to Kosovo, and the domestic authorities should therefore have obtained individual guarantees from Kosovo.
The authors note that in the framework of article 3 of the European Convention on Human Rights, the European Court of Human Rights has highlighted the vulnerability inherent to being a child.14 They argue that the facts of the present case are more serious than those in Hukić v. Sweden.
- European Court of Human Rights, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium. ↩
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee notes the State party’s position that the authors’ arguments regarding their ethnicity do not relate to Z.R.’s disability and are consequently inadmissible ratione materiae. The Committee notes, however, that the authors do not advance arguments concerning their membership of the Roma minority in Kosovo separately, but rather as part of their claim that Z.R. would not be able to access the required healthcare in Kosovo. The Committee therefore considers that it is not precluded under article 2 (b) of the Optional Protocol from examining the present communication.
The Committee notes the State party’s submission that the communication is inadmissible as insufficiently substantiated under article 2 (e) of the Optional Protocol. The Committee considers, however, that the authors have sufficiently substantiated their complaint insofar as they claim that Z.R.’s removal to Kosovo would preclude her from accessing or benefiting from the healthcare she requires, in breach of articles 10 and 15 of the Convention. On the other hand, the Committee considers that the authors have not sufficiently substantiated their argument of a risk of a violation of Z.R.’s rights under the Convention in case S.R. is deported to Kosovo. In this regard, the Committee takes note of the absence of information suggesting that the authors would be deported separately from each other.
In the absence of any other challenges to the admissibility of the communication, the Committee declares the communication admissible insofar as it concerns the authors’ claims under articles 10 and 15 of the Convention concerning Z.R.’s removal to Kosovo and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information that it has received, in accordance with article 5 of the Optional Protocol and rule 73 (1) of the Committee’s rules of procedure.
The Committee recalls that the removal by a State party of an individual to a jurisdiction where he or she would risk facing violations of the Convention may, under certain circumstances, engage the responsibility of the removing State under the Convention.15 The Committee considers that the principle of non-refoulement imposes a duty on a State party to refrain from removing a person from its territory when there is a real risk that the person would be subjected to serious violations of Convention rights amounting to a risk of irreparable harm, including but not limited to those enshrined in articles 10 and 15 of the Convention.16 Accordingly, States parties are obliged not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm.17 The risk must be personal18 and there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.19 Considerable weight should be given to the assessment conducted by the State, and it is generally for the organs of States to review or evaluate the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that the evaluation was clearly arbitrary or amounted to a manifest error or denial of justice.20
The Committee notes the jurisprudence of the European Court of Human Rights in Paposhvili v. Belgium,21 in which the Court noted that the removal of a person in need of ongoing medical care could in “very exceptional cases” raise an issue under article 3 of the European Convention on Human Rights. The Court noted that this should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court further noted that it is for the applicant to adduce evidence capable of demonstrating that there are substantial grounds for believing that he or she would be exposed to a real risk of ill-treatment if removed. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances. The assessment of the risk must therefore take into consideration general sources, such as reports of the World Health Organization or of reputable non-governmental organizations, and the medical certificates concerning the person in question.22 As regards the factors to be taken into consideration, the Court noted that the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. The authorities must also consider the extent to which the individual in question will actually have access to care and facilities in the receiving State.23 Similarly, the Committee on the Rights of the Child has established that the principle of non-refoulement does not confer a right to remain in a country solely on the basis of a difference in health services that may exist between the State of origin and the State of asylum, or a right to continue medical treatment in the State of asylum, unless such treatment is essential for the life and proper development of the applicant child and would not be available and accessible in the State of return.24
- European Court of Human Rights, Paposhvili v. Belgium (application No. 41738/10), judgment of 13 December 2016, paras. 173 and 174. See also European Court of Human Rights, Savran v. Denmark (application No. 57467/15), judgment of 1 October 2019, in which the Court held that removing the applicant to Türkiye without the receipt by Danish authorities of sufficient and individual assurances on his care in Türkiye would violate article 3 of the European Convention on Human Rights. ↩
- European Court of Human Rights, Paposhvili v. Belgium, paras. 183–187. ↩
- Ibid., paras. 189 and 190. ↩
- See, inter alia, G.R. et al. v. Switzerland (CRC/C/87/D/86/2019), para. 11.6. ↩
In the present case, the Committee notes, on the one hand, the authors’ claims that, by deporting Z.R. to Kosovo, the State party would breach her rights under articles 10 and 15 of the Convention, as she would not be able to access or benefit from the healthcare she requires, which would result in a real risk of being exposed to a serious, rapid and lasting deterioration in her state of health. The Committee notes the authors’ information that Z.R. requires treatment for chronic complex post-traumatic stress disorder related to sexual abuse and resignation syndrome, an abdominal reconstruction, and treatment for constipation and epilepsy, in a specific order and in safe and stable conditions. Specifically, the Committee notes the authors’ arguments that the medical country-of-origin information on which the domestic authorities relied to make their determinations does not demonstrate the availability and accessibility of adequate healthcare required by Z.R. in Kosovo or that specialized competence and the required coordination in healthcare exist there or that there is experience with treating resignation syndrome; that members of the Roma minority and women suffer from discrimination and limited access to healthcare in Kosovo; and that the State party should therefore have obtained individual guarantees from the Kosovar authorities regarding Z.R.’s access to healthcare. The Committee also notes the authors’ argument that Z.R.’s condition would be life-threatening without treatment.
On the other hand, the Committee takes note of the State party’s argument that its domestic authorities duly examined the authors’ claims and found that, according to the medical country-of-origin information, the required hospital care, medication and psychiatric care for post-traumatic stress disorder, including as resulting from sexual assault, were accessible in Kosovo, that the authors had not plausibly demonstrated that Z.R. would not be able to access the necessary medical and psychiatric care due to her ethnicity, and that the mere circumstance of lacking financial resources or the difference in the quality of healthcare between Sweden and Kosovo could not exhaustively explain why Z.R. could not access healthcare in Kosovo, nor had the authors shown that Z.R.’s health condition significantly deteriorated after she returned to Kosovo in 2018.
The Committee must therefore determine in the present case, taking into account the factors set out above, whether there are substantial grounds for believing that Z.R. would face a real risk of irreparable harm as contemplated in articles 10 and article 15 of the Convention if she were to be removed to Kosovo, such as being exposed to a serious, rapid and irreversible decline in her health resulting in intense suffering or to a significant reduction in life expectancy.25 Specifically, the Committee will consider the authors’ claims regarding the domestic assessment of the availability and accessibility of the treatment Z.R. requires in Kosovo. Regarding the authors’ claim that Z.R. was a child when the State party’s authorities decided to return her to Kosovo, the Committee notes that she is now an adult and therefore this argument has become moot.
- N.L. v. Sweden, para. 7.5; and Z.H. v. Sweden, para. 10.7. ↩
Regarding the availability in Kosovo of the treatment that Z.R. requires, the Committee notes that the Swedish Migration Agency obtained two medical country-of-origin information reports in 2019 concerning the availability of treatment and medication specific to Z.R.’s conditions in Kosovo. The Committee notes that the authors assert that the reports do not state whether the specialized competence of the kind required and the ability among healthcare providers to coordinate exist. However, the Committee notes that the Migration Agency concluded, based on medical country-of-origin information reports, that the required paediatric care relevant to Z.R.’s requirements, including treatment for post-traumatic stress disorder related to sexual assault, exists in Kosovo, as do plastic surgery, including gastrointestinal surgery, and the required medication. Furthermore, the Committee notes the reasoning of the Migration Court in its decision of 23 November 2020 that taking into account Z.R.’s need for coordinated care, it had not been demonstrated that, upon return to Kosovo, she would run a real risk of being subjected to a serious, rapid and lasting decline in her state of health. The Committee also notes that the Migration Agency noted Z.R.’s resignation syndrome in its medical country-of-origin information request but concluded that Z.R. could benefit from the required care in Kosovo. The Committee considers that, while the authors dispute the aforementioned assessments, they have not demonstrated that these were clearly arbitrary or amounted to a denial of justice. In view of the foregoing, the Committee considers that the authors have not demonstrated that it was arbitrary for the State party’s authorities to conclude that the treatment that Z.R. requires is available in Kosovo.
The Committee notes the authors’ assertion that the migration authorities did not assess whether Z.R. would have access to the required treatment considering the discrimination to which she may be exposed as a member of the Roma community and as a woman. The Committee recalls that article 6 of the Convention addresses intersectional discrimination of women and girls with disabilities. However, the Committee also notes that the Swedish Migration Agency concluded in its decision of 20 January 2020 that nothing had emerged to suggest that Z.R. belongs to a group that cannot receive or is otherwise prevented from receiving healthcare in Kosovo. The Committee notes that the authors have not explained the reasons or circumstances concerning the alleged denial of medical treatment to Z.R. in Kosovo in 2018, and that they have not refuted that she obtained healthcare there before entering Sweden in 2012. The Committee notes, moreover, that the authors have not identified any other factors that the domestic authorities allegedly failed to consider. The Committee therefore finds that the authors have not demonstrated that it was arbitrary for the Migration Agency to conclude that Z.R. would have access to the required healthcare treatment. In view of the foregoing (see paras. 7.2–7.7 above), the Committee finds that the authors have not shown that the State party failed to take all necessary measures to ensure the effective enjoyment of the right to life by Z.R. on an equal basis with others, or that it failed to take all effective legislative, administrative, judicial or other measures to prevent Z.R., on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment. Therefore, the Committee considers that, based on the information on file, it cannot conclude that the removal of Z.R. to Kosovo would breach her rights under articles 10 or 15 of the Convention.
In the light of the above, the Committee is of the view that the facts before it do not disclose a violation of articles 10 or 15 of the Convention.
C. Conclusion
The Committee, acting under article 5 of the Optional Protocol, is of the view that the facts before it do not disclose a violation of articles 10 or 15 of the Convention.