CRPD - Z.H. v. Sweden, Communication No. 58/2019, 06/09/2021

Facts:

The applicant is an Afghan national, who applied for asylum in Sweden on the basis that upon his return to Afghanistan, he would risk being persecuted or killed as a result of past events and Hazara ethnicity. His asylum claim was dismissed as it was not found credible. However, the expulsion order against him became statute-barred due to non-enforcement, enabling the applicant to submit a renewed asylum request, claiming that he has been diagnosed with post-traumatic stress disorder (PTSD) with psychotic features that originated from the death threats from Afghanistan. Although the Swedish Migration Agency acknowledged the shortcomings in healthcare in Afghanistan, they nevertheless concluded that some sort of psychiatric treatment facilities were available in Kabul, and therefore he would not be subject to risks of death or ill-treatment if returned.

In his appeal to the Migration Court, the applicant provided medical reports indicating his mental health condition, and was committed to a clinic in Sweden under the Compulsory Psychiatric Care Act, where he was diagnosed with Schizophrenia. However, the Court denied his appeal, stating that the paranoid schizophrenia diagnosis was not properly documented and that the applicant would not face a risk of violence if returned. Thereafter, the applicant submitted new medical reports as evidence and claimed that there were impediments to the enforcement of his deportation order, to which the Migration Agency noted that the deterioration of the applicant’s mental health must be linked to the rejection of his asylum application rather than a serious health condition.

The applicant appealed this decision claiming that the authorities had failed to assess whether adequate medical treatment would be available to him in Afghanistan for his paranoid schizophrenia, which was dismissed by the Migration Court by stressing that his diagnosis is not of relevance in the domestic authorities’ assessment of available medical treatment in Afghanistan. The applicant submitted an application to the European Court of Human Rights, which rejected his request for interim measures and declared the application inadmissible. Subsequently, he submitted an application to the Committee, claiming that by deporting him to Afghanistan, the State party would violate his rights under Articles 10 and 15 of the Convention.

Decision & reasoning:

The Committee noted the applicant’s claims that by deporting him to Afghanistan, the State party would violate his rights under Articles 10 and 15 of the Convention on the Rights of Persons with disabilities (hereafter, the Convention), as his removal would lead to a grave risk of suicide, as well as other serious risks to his life and health. The Committee recalled that Article 10 of the Convention stipulates that State parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. Further, the committee also recalled that under Article 15 of the Convention, State parties shall take effective measures to prevent persons with disabilities from being subjected to torture, or cruel, inhuman or degrading treatment or punishment. The main issue before the Committee was whether there are substantial grounds for believing that the applicant would face a real risk of irreparable harm as contemplated in Articles 10 and 15 of the Convention if he were to be removed to Afghanistan, such as being exposed to a serious, rapid and irreversible decline in his health resulting in intense suffering or to a significant reduction in life expectancy.

The Committee recalled N. L. v. Sweden wherein it found a violation of Article 15 of the Convention on account of the State party’s failure to assess whether the applicant would be able to access medical care in the country of removal, which established the general principles that are relevant to this case. The Committee noted that it is generally for the courts of State parties to the Convention to evaluate facts and evidence of a particular case, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice. In the present case, the author has discharged the burden of proof by adducing sufficient evidence to demonstrate substantial grounds for believing that he would be exposed to real risk of ill-treatment if removed. However, the domestic authorities assessed the author’s ill health and suicidal ideation to be primarily linked to his rejected asylum claims, which unreasonably weakened the author’s claims related to his diagnosis. The Committee also noted how the migration authorities held that necessary medical care was available in Afghanistan, despite sources on the general situation revealing limited availability of psychiatric care and access to medication. Furthermore, the Committee was of the view that assessment of individual circumstances would have been particularly important in the present case given that the applicant left Afghanistan 13 years ago and reports indicate that returnees may face particular challenges in accessing healthcare services.

Therefore, the Committee concluded that the domestic authorities’ assessment was arbitrary as regards to the existence of a real risk of irreparable harm for the author in his country of origin, and his removal would violate his rights under Article 15 of the Convention. The Committee did not consider it necessary to separately assess the claims under Article 10 of the Convention.

Outcome:

The Committee, acting under article 5 of the Optional Protocol, was of the view that the State party has failed to fulfil its obligations under article 15 of the Convention, and made the following recommendations to the State Party:

(a) Concerning the author, the State party is under an obligation:

(i) To provide him with an effective remedy, including compensation for any legal costs incurred in filing the present communication;

(ii) To review the author’s case, taking into account the State party’s obligations under the Convention and the Committee’s present Views;

(iii) To publish the present Views and circulate them widely in accessible formats so that they are available to all sectors of the population.

(b) In general, the State party is under an obligation to take measures to prevent similar violations in the future. In that regard, the Committee requires the State party to ensure that the rights of persons with disabilities, on an equal basis with others, are properly considered in the context of asylum decisions.

Observations/comments:

This summary was written by Archana Pingal during her participation in the Migration Law Clinic of Gent University.

Other sources:

Optional Protocol to the Convention on the Rights of Persons with Disabilities – Article 5.

N.L. v. Sweden (CRPD/C/23/D/60/2019)

Committee on the Rights of Persons with Disabilities, Rules of Procedure – Rule 73(1).

Human Rights Committee, General Comment No. 31 (2004): The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004.