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Sweden - Migration Court of Appeal, 27 November 2007, UM 1344-06
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (e)
A HIV-infected person cannot be granted a residence permit in Sweden on medical grounds if health care and medicines are available in the home country, even if the person has financial difficulties and has to pay for treatment himself/herself. The economic consequences of doing so for Sweden must be taken into consideration in the decision. Further, that an assessment of whether an applicant risks being prevented from getting adequate care because of their political opinions should be made in the context of examining the need for protection and not as part of an assessment of whether there are any particularly distressing circumstances.
The applicant applied for asylum on the 27th September 2005. He stated that he was a supporter but not a member of a political party in his native Cameroon, and that he attended a few meetings and a demonstration organised by this party. The applicant also stated that in connection with the celebration of the party’s anniversary he was arrested by police and detained for six days before he managed to escape. While he was imprisoned the applicant was badly beaten. He also stated that he had HIV.
The Migration Board rejected the applicant's claim and stated that the applicant was not a member of the party nor had he a prominent role either in the party or in connection with the meetings or demonstrations that he attended. The Migration Board also found that the applicant's knowledge of the party was vague and that his account of political activity was in certain parts contradictory. The Migration Board did not consider that the applicant had shown it likely that he was of interest to the authorities of Cameroon and that he therefore had not established that he was to be regarded as a refugee or in need of subsidiary protection.
Regarding the applicant's HIV infection the Migration Board emphasised that the government in a guideline decision had stated that a residence permit can be given to those who suffer from a life-threatening illness when a person cannot receive health care in the home country and also to a person who has a very severe handicap. Solely economic problems in obtaining care cannot be considered sufficient grounds to grant a residence permit. The government had in another guideline decision found that these principles are also applicable in the case of HIV / AIDS. Since the application of particularly distressing circumstances should be implemented restrictively the Migration Board decided that the applicant could not be granted a residence permit on this basis.
The applicant appealed the decision to the Migration Court which granted the applicant a permanent residence permit. The Court agreed with the Migration Board's assessment of the applicant's protection grounds but granted a residence permit because of particularly distressing circumstances. The Court noted that care for people with HIV was indeed available in the Cameroon, but was restricted to a few citizens in return for payment. The Migration Court said that it was unlikely that the applicant would receive adequate care in his home country in light of the authorities' interest in people with political commitment at the grassroots level. The presiding judge dissented.
The Migration Board contested the Migration Court’s decision and was granted leave to appeal.
The Migration Board stated in its appeal that the applicant had not established it as reasonably likely that he would have trouble with the authorities on his return, and that it was therefore unlikely that the authorities would prevent the applicant from receiving adequate care. The Migration Board pointed out again that they did not consider the applicant's account coherent and credible, but that even if the account was accepted there was no link between the alleged events and opportunities for obtaining medical treatment. The Migration Board also claimed that it was irrelevant whether the care was charged for or not, since a residence permit cannot be granted for this reason.
The applicant maintained that he had no chance to obtain HIV treatment if he returned to Cameroon, since very few were receiving treatment there. The Health Minister's promise of free treatment had not been implemented. The country was very corrupt and only those who were very rich and had contacts received HIV treatment. The applicant also stressed that the problems he had in his home country even if they were not deemed sufficient for him to be granted asylum could be a sufficient obstacle to make it impossible for him to get HIV treatment.
The Migration Court of Appeal sought the opinion of the National Social Welfare Board on HIV / AIDS and access to health care in Cameroon. This revealed that an untreated HIV infection led to almost 100 percent mortality but that an HIV infection genuinely treated lege artis did not lead to mortality per se. This assumed that there was access to HIV drugs and a supportive care structure. If a patient had difficulty taking prescribed drugs this could worsen the prognosis. When stopping drugs the virus immediately begins to multiply and the process becomes essentially the same as in an untreated HIV infection. The professor and doctor who wrote the opinion emphasised that he did not know the specific situation in Cameroon, but he knew that HIV drugs were available in African countries including Cameroon. Treatment options for treatment failure and side effects are more limited, unless the patient can afford to buy new "modern" anti-HIV medicines. Furthermore, he noted that Cameroon introduced national guidelines for HIV treatment in 2003. According to WHO / UNAIDS 17,904 of the 108,000 HIV-infected received treatment in Cameroon in 2005. Cameroon's Minister of Health stated in 2007 that the country would offer free HIV-treatment to all HIV-positive, with funding by the government.
The Migration Court of Appeal found that if the applicant would be prevented from receiving adequate care because of his political commitment, it could be considered as refugee-convention based persecution. The assessment of whether the applicant might be prevented from receiving adequate care because of his political opinions should therefore be considered under protection grounds and not as part of the assessment of if there were any particularly distressing circumstances. The Migration Court of Appeal did not consider that the applicant had established as reasonably likely that he, because of his political opinions would be denied adequate health care in Cameroon and therefore he was not considered to be a refugee or a person in need of subsidiary protection.
As regards the assessment of particularly distressing circumstances the Migration Court of Appeal noted that the government, in preparing the bill for the new Aliens Act, had not mentioned anything about changing the restrictive practices previously used in the case of a residence permit on grounds of ill health. The government had previously held in their guideline decisions that the economic difficulties in obtaining health care in the home country should not lead to a residence permit being granted and that these general principles could also be applied in the assessment of HIV / AIDS. The applicant's illness was life-threatening if not treated, but the investigation of the case showed that health care was available in Cameroon, although it was not often free. As the legislative history and past practice says that the financial implications for Sweden must be considered in the assessment of whether a residence permit should be granted and that economic difficulties to obtain care in the home country should not lead to granting a residence permit the Migration Court of Appeal concluded that a residence permit due to medical reasons could not be granted.
The Migration Court of Appeal allowed the appeal, quashed the judgement of the Migration Court and upheld the Migration Board's decision to expel the applicant.
Sweden - MIG 2007:15