ECtHR - A.A. v. Sweden, Application No. 4677/20, 13/07/2023
| Country of applicant: | Libya |
| Court name: | European Court of Human Rights |
| Date of decision: | 13-07-2023 |
| Citation: | ECtHR, A.A. v. Sweden, Application No. 4677/20, 13 July 2023 |
| ECLI: | ECLI:CE:ECHR:2023:0713JUD000467720 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
An applicant will not be subject to risk of ill treatment under Articles 2 and 3 of the ECHR, either because of the general security situation in Libya or the applicant’s previous work affiliated with the Gaddafi regime. The Court found that the situation in Libya was not such that the applicant would face ill treatment upon return and that the documents submitted to prove otherwise were of low evidentiary value.
Facts:
The applicant is a Libyan national who arrived in Spain with valid documents but later moved to Sweden in August 2012 under a false identity, claiming threats from the Libyan mafia. In October 2012, the Migrationsverket (Migration Agency in Sweden) decided to return the applicant under the Dublin Regulation, but the decision could not be enforced as the applicant absconded. In 2015, he reapplied for asylum in Sweden, citing a real risk of ill-treatment upon return to Libya on account of his work for the Gaddafi regime. In 2017, the Migrationsverket rejected the applicant’s request, observing that while a serious internal armed conflict existed in Libya, it was not such that all returnees would be at risk of it. The Migrationsverket upheld its decision in appeal, further noting that the documents indicating his work affiliated with the Gaddafi regime and the consequent arrest warrants were of low evidentiary value. Upon refusal of asylum in Sweden for the second time, the applicant filed a complaint before the ECHR that his removal would breach Articles 2 and 3 of the Convention.
Decision & reasoning:
The State party acknowledged the concerns about the general security situation in Libya but maintained that it was not such as to exclude any removal. As for the individual claims, the State argued that the applicant lacked credibility and failed to substantiate real risk under Articles 2 and 3. However, the applicant maintained that the situation in Libya has reached such a level that anyone being removed there would risk being subjected to ill treatment under Articles 2 and 3 of the Convention, referring to the UNHCR report which urged all states to suspend forcible returns to Libya. He also argued that the State party did not take any steps to verify the authenticity of his documents provided during the domestic proceedings to assess his credibility.
The Court observed that, according to international law and treaty obligations, Contracting States have the right to control the entry, residence, and expulsion of “aliens”. However, States are also responsible for not deporting a person when there are substantial grounds to show that deportation leads to a real risk of ill treatment contrary to Article 3 of the Convention. The Court referred to relevant UNHCR and UK Home Office country reports and found that the conclusions of the Migrationsverket and the domestic courts that the situation in Libya is not such that there was a general need for international protection for asylum seekers was indeed true. The Court, while recognising that violations of human rights and international humanitarian law have continued since the ceasefire, did not find that the applicant will be subject to ill-treatment contrary to Article 3 simply by virtue of deportation.
The Court further proceeded to consider a full and ex nunc evaluation of the case. The Court remarked that it is generally the duty of the asylum seeker and the migration authorities to ascertain the veracity of the facts of the case in proceedings. As asylum seekers are normally the only parties able to provide information about their personal circumstances, the burden of proof generally lies on them. The Court observed that the applicant originally applied for asylum in 2012 under a false identity, claiming that he was under threat from the Libyan mafia, but when he reapplied in 2015, he alleged that he was wanted by the Gaddafi regime, reducing his credibility. Further, the Court did not find any evidentiary value in the applicant’s incoherent oral statements, the handwritten passports, and the alleged arrest warrants. Accordingly, the Court concluded that the applicant’s removal would not be contrary to Articles 2 and 3 of the Convention as he failed to substantiate that he would be at risk of being killed or subject to ill-treatment upon return.
Outcome:
The Court found no violations under Articles 2 and 3 of the Convention.
Observations/comments:
This summary was written by Archana Pringal during her participation in the Migration Law Clinic of Gent University.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99 |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - Sufi and Elmi v. the United Kingdom, Application Nos. 8319/07 and 11449/07 |
| ECtHR - H.L.R. v. France, Application no. 24573/94 |
| ECtHR - F.G. v. Sweden (no. 43611/11) (Grand Chamber), 23 March 2016 |
| ECtHR – Saadi v. Italy, Application No. 37201/06, 28 February 2008 |
| ECtHR - J.K. and Others v. Sweden, Application No. 59166/12, 23/08/2016 |
| United Kingdom - Upper Tribunal (Immigration and Asylum Chamber), ZMM (Article 15(c)) Libya CG, [2017] UKUT 00263 (IAC), 28/06/2017 |
Other sources:
Rule 39 of the Rules of Court of the European Court of Human Rights (Interim Measures).
United Nations High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Libya – Update II, September 2018.
Swedish Migration Agency (Migrationsverket), Legal Position – Security Situation in Libya (Rättsligt ställningstagande – Säkerhetssituationen i Libyen), RS/074/2021, 31 May 2021.
United Kingdom Home Office, Country Policy and Information Note: Libya – Actual or Perceived Supporters of Former President Gaddafi, April 2019.
United Kingdom Home Office, Country Policy and Information Note: Libya – Security and Humanitarian Situation, September 2020.