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Sweden - Migration Court of Appeal, 30 May 2007, MIG 2007:25
The fact that a child suffered from epilepsy and that the quality of the care that the child could obtain in Sweden was higher than in the country of origin were not sufficient grounds to grant a residence permit on the grounds of “particularly distressing circumstances” which may only be granted in exceptional cases.
The applicant (A) sought asylum with her minor son (B) in March 2005. In addition to protection grounds the applicant invoked her son’s epilepsy and the fact that he was taking special medication continuously. The Migration Board rejected their application. The Board emphasised that the scope for issuing residence permits on humanitarian grounds was very limited. The Migration Board also pointed out that the son did not have a diagnosis and that the mother had said that her son received care in Eritrea and that he would have been taken to another hospital with better equipment when they chose to leave the country.
The applicants appealed to the Migration Court, arguing that a precautionary principle should apply, and that a residence permit should be granted and that the matter of the residence permit should be resolved before the investigation of the son’s medical condition was completed. The fact that the son had received incorrect medication in his country of origin should be taken as proof that there was no adequate care available there. The appeal also relied on a report by the World Health Organisation from 2001 which noted the lack of neurologists and also access to some common medications in Eritrea. The Migration Board maintained its assessment that the son could receive care at home. They also stressed that the granting of the son’s application would result in all children with the same problems having the right of residence in Sweden.
The Migration Court noted that the son suffered from a severe form epilepsy which however, was not life threatening and that the treatment of the disease was relevant in assessing the son’s future development and quality of life. The fact that the son received treatment and medicines in Eritrea undermined, according to the Migration Court, the claim that access to care and medications were lacking in the country of origin. It was rather a question of a difference in quality, and the fact that the quality is higher in Sweden cannot constitute grounds for a residence permit. The appeal was therefore rejected, but one juror dissented.
The applicants appealed to the Migration Court of Appeal.
On appeal the applicant’s argued that there were no child neurologists in Eritrea, and that therefore it was impossible to determine what type of treatment the son was in need of. The supply of medicine is at best sporadic and at worst non-existent, and having no medicine would rapidly be fatal for the son. The appeal stressed in particular that the law on children's health needs did not require that the illness be life-threatening. The child's future development and quality of life should be considered. The applicants also mentioned a medical certificate indicating that the son had had several major attacks every few weeks in the recent past and that his condition had deteriorated so much that he was referred to a children's hospital for further medical assessment. He also suffered from intermittent periods of high fever and this was being investigated separately from his epilepsy. In the medical certificate it was also noted that his anti-epileptic medication had to be increased and that it was “very apparent that his neurological problems, developmental delay and severe epilepsy required a multidisciplinary investigation and repeated specialist assessments." It was claimed that specialist assessments and the necessary periodic examinations could not be performed in the same way in Eritrea. The medical certificate also highlighted that there was a substantial risk of acute deterioration in his epilepsy, which at worst could be fatal if treatment were abruptly discontinued.
The Migration Court of Appeal stressed that a permit based on "extremely distressing circumstances" may only be granted in exceptional cases. It was uncontested that the son suffered from epilepsy from early infancy. The Migration Court of Appeal found, however, that in Asmara, Eritrea's capital, there were several hospitals, including a paediatric clinic. The child had been treated for his illness for six months in his country of origin. When he and his mother arrived in Sweden he was being under dosed. His mother stated then that he suffered from epilepsy, but said nothing that suggested that there was no satisfactory treatment for her son at home. The Migration Court of Appeal considered that it had been shown that the son’s future development and quality of life would be compromised in a decisive manner if returned to Eritrea. The fact that the treatment that could be received in Sweden was of a higher quality could not be grounds for a residence permit.
The Migration Court of Appeal refused the appeal and determined that the Migration Board's decision to remove the applicants should stand.
The applicant (A) had applied for protection in the above proceedings as she was critical of the Eritrean regime. She claimed that she had escaped from detention in Eritrea, however her account was not found credible.
Following the publicity regarding her son’s case the applicant was interviewed in a national newspaper where she spoke about her son’s illness and also voiced her criticism of the Eritrean regime. Her name and photograph appeared in the newspaper article.
As a result the applicant was contacted by the Eritrean Embassy in Sweden, therefore she reapplied for protection and was granted convention status.