ECtHR - R.H. v. Sweden, No. 4601/14, 10 September 2015

Procedural Background

On 27 December 2011 the applicant applied for asylum and a residence permit in Sweden. During the asylum interview, the Swedish Migration Board (Board) found that the applicant had previously applied for asylum—first in Italy and then in the Netherlands. As such, the Board commenced the applicant’s transfer to Italy in accordance with the Dublin Regulation, but the transfer decision became time-barred before the applicant could be transferred.

On 30 November 2012, the applicant initiated a subsequent asylum petition and residence permit in Sweden. In this asylum petition, the applicant argued that she faced persecution in Mogadishu, Somalia for: 1) having fled a forced marriage and risking death as a consequence; 2) risking sexual assault for lacking a male support network; 3) becoming a social outcast as a single woman; and 4) the general dire humanitarian situation in Somalia. The applicant contended that her removal would be a violation of Article 3 of the European Convention on Human Rights (Convention).

Factual Allegations for Asylum Petition

To support her legal arguments, the applicant alleged the following. In 2004, her family forced her to marry an older man against her will. At the time, the applicant was in a secret relationship with a boyfriend from school. Both the boyfriend and applicant unsuccessfully tried to escape Mogadishu after being caught and beaten by her uncles. As a result, the applicant was hospitalised due to hip injuries. Trying again, the applicant and boyfriend fled to Ethiopia, Sudan, and then to Libya in order to take a boat to Italy. However, the boat sank en route to Italy and the boyfriend died.

Asylum Decision

Although the Board found it plausible that the applicant came from Mogadishu, it rejected the applicant’s asylum application and entered a deportation order to Somalia because the applicant could not substantiate her identity, noting that the applicant had applied for asylum in the Netherlands and Italy under different identities. Moreover, the applicant’s need for protection was questioned since the applicant arrived in Sweden in 2007 but did not apply for asylum until 2011. Lastly, the applicant’s credibility was also questioned because: she originally claimed that she was unmarried but was found to be married during a later stage in the asylum process; her sole form of persecution in her initial asylum application was the dire humanitarian situation claim; she could not remember how she sustained her hip injury in her subsequent application; and she originally claimed that she lived with a friend in Mogadishu but later stated that she lived with her parents.

Moreover, the Board concluded that it was not plausible that the applicant had been subjected to any ill-treatment by her relatives or that she lacked a male support network. In response to the claim that that general situation of Mogadishu was dire, the Board relied on information from a fact-finding mission to Mogadishu in 2012 and concluded that the situation in the city was not severe and that the applicant would be able to return there.

Appeal

On 4 June 2013, the Migration Court agreed with the Board’s findings and rejected the applicant’s appeal. In addition to the Board’s concern with the applicant’s credibility, the Migration Court found that the applicant originally claimed that she was forced to marry in 2014 but later changed the date to 2010.

On 15 July 2013, the Migration Court of Appeal refused the leave to appeal.   

On 7 September 2013, the Board rejected the applicant’s request that the Board re-examine her case, finding that the applicant did not present any new circumstances justifying reconsideration.

Factual Allegations before the European Court of Human Rights (ECtHR)

The applicant submitted an application before the European Court of Human Rights (Court) alleging that her removal from Sweden would expose her to treatment in violation of Article 3 of the Convention. To support her argument, the applicant alleged that she would face a real risk of either being killed by her uncles or being forced to marry. The applicant also reiterated that the general situation in Somalia would expose her to serious danger as a woman who lacked a male network. Moreover, the applicant also challenged the findings by the Board and the Migration Court that she was not credible. Lastly, the applicant argued that the ECtHR’s findings in K.A.B. v. Sweden should be distinguished because unlike the applicant in K.A.B. who was a man, as a woman the applicant would face gender-based abuse if returned to Somalia because the violence against women and general conditions in Somalia had deteriorated since the K.A.B. judgment.