Sweden - Migration Court of Appeal, 22 March 2013, UM 7533-12, MIG 2013:6

Facts:

A 17-year-old boy and his mother sought asylum in Sweden in 2011. They said that the boy was suffering from leukaemia, could not access care in Kosovo, and that they had therefore travelled to Serbia, where he was cared for, for two months. When they returned to Kosovo, they said that they had been harassed by Albanians for seeking care in Serbia. They believed that it would not be possible to access further care in Serbia partly because of the problems getting into the country and partly because of the conflicts prevailing between the peoples of Serbia and Kosovo. The Swedish Migration Board rejected the application as they had not demonstrated sufficiently that the authorities in Kosovo lacked the will or the ability to provide protection against harassment from private individuals and that, according to the Swedish Migration Board, there was access to care available in Serbia. The Applicants appealed to the Swedish Migration Court, saying, amongst other things, that the boy had had a relapse of his leukaemia and that he needed to undergo treatment not available in his home country. The Migration Court rejected the appeal, saying that there was adequate care available in Serbia, and stayed enforcement of the deportation order for consultation with doctors to take place.

At appeal to the Migration Court of Appeal, the grounds for asylum were maintained, and it was claimed that there were particularly distressing circumstances. By way of grounds for the latter, it was cited above all that the boy had suffered a relapse of his leukaemia, had undergone stem cell transplantation, which requires aftercare lasting approximately one year, that it was indisputable that he would never be free of the disease, and that there was no option to access the currently relevant care and treatment in his home country or Serbia. Two doctor's certificates were submitted to support this information. The Swedish Migration Board indicated that the Applicants had been granted limited leave to remain for one year but not permanent leave to remain.

The Migration Court of Appeal granted leave to appeal and decided to assess the question of whether the Applicants could be granted leave to remain on the basis of particularly distressing circumstances, in accordance with Chapter 5(6) of the Aliens Act.

Decision & reasoning:

The Migration Court of Appeal started by stating, without indicating grounds, that it agreed with the assessment of the lower instances that the family was to be viewed not as refugees but as persons in need of protection in accordance with Chapter 4(1), (2), and (2 a) of the Aliens Act.

The Migration Court of Appeal then summarised the provision contained in Chapter 5(6) concerning particularly distressing circumstances, and in Chapter 1(10) concerning the child's health and development and taking into account the child's best interest, and the case law of the Migration Court of Appeal (including MIG 2007:48 and 2012:23). In relation to the family, it was found that both mother and son had a strong connection to their home country, Kosovo, and that they had spent only one-and-a-half years in Sweden. It was therefore concluded that this period was not long enough for leave to remain to be granted under Chapter 5(6) of the Aliens Act. The circumstances that required particular consideration by the Court consisted, rather, of the boy's state of health and the care options in the home country, Kosovo, or in Serbia.

After a brief description of the content of the certificates submitted, the Court found that the examination in the case had shown the boy to be suffering from a particularly serious disease and that he could not receive the necessary care if he returned to his home country. Therefore, particularly distressing circumstances were found to exist. The boy was thus granted leave to remain on these grounds. His mother was granted leave to remain, as his caregiver, under the same provision. The Migration Court of Appeal found, however, that the boy's requirement for advanced care and treatment would extend for one year and was essentially temporary, so the leave to remain was limited to a fixed period, under Article 5(9) of the Aliens Act.

Outcome:

The appeal was upheld in part. The Applicants were granted limited leave to remain on the basis of particularly distressing circumstances.

Other sources:

Prop. 2004/05:170 p. 191