Committee on the Rights of Persons with Disabilities
Decision adopted by the Committee under article 2 of the Optional Protocol, concerning communication No. 49/2018 * , **
Communication submitted by:M.Y. (represented by counsel, Robert Nyström)
Alleged victim:The author
Date of communication:29 March 2018 (initial submission)
Document references:Decision taken pursuant to rules 64 and 70 of the Committee’s rules of procedure, transmitted to the State party on 3 April 2018 (not issued in document form)
Date of adoption of decision:19 March 2021
Subject matter:Deportation to Afghanistan
Procedural issues:Substantiation of claims; admissibility ratione materiae; admissibility ratione loci ; exhaustion of domestic remedies
Substantive issues:Freedom from torture and cruel, inhuman or degrading treatment; discrimination on the ground of disability; rehabilitation
Articles of the Convention:15, 16 and 26
Articles of the Optional Protocol:1 and 2 (c), (d) and (e)
1.1The author of the communication is M.Y., a national of Afghanistan, born in 1998. His application for asylum has been rejected in Sweden and he risks deportation. He claims that, by deporting him to Afghanistan, the State party would violate his rights under articles 15, 16 and 26 of the Convention. The Optional Protocol to the Convention entered into force for the State party on 14 January 2009. The author is represented by counsel.
1.2On 3 April 2018, the Special Rapporteur on new communications and interim measures, acting on behalf of the Committee under article 4 of the Optional Protocol to the Convention, requested the State party to refrain from deporting the author to Afghanistan pending the examination of the communication by the Committee.
A.Summary of the information and arguments submitted by the parties
Facts as submitted by the author
2.1The author was born outside of marriage, which is considered a great sin in Afghanistan. He is disabled, as he is missing the three middle fingers on his right, dominant, hand. For this reason, he has been exploited and subjected to ill-treatment, including rape and other sexual abuse, and to social exclusion his entire life. Both his Hazara ethnicity and his non-marital birth have rendered him vulnerable. His parents had been killed, and he had lived with his paternal uncle during his childhood. His maternal family, who he had been told wished to harm him, was looking for him and he had thus been forced to move to Kabul with his paternal family, where he had mostly stayed indoors. He had to quit school when it was no longer safe to attend. Shortly after his uncle’s death, he was forced to flee Afghanistan, as his maternal family had continued to look for him. He claims that he suffers from post-traumatic stress disorder.
2.2The author is convinced that those looking for him are doing so on the ground of his disability, given the general perception towards persons with disabilities in Afghanistan. However, he is unaware why he had been raped and persecuted, and a continuing personal threat against him in Afghanistan can therefore not be excluded.
2.3The Swedish Migration Agency rejected the author’s claim of impediments to the enforcement of the expulsion order on 26 January 2018. The Migration Court rejected his appeal on 21 February 2018 and the Migration Court of Appeal denied leave to appeal on 8 March 2018.
3.1The author claims that, by deporting him to Afghanistan, the State party would violate his rights under articles 15, 16 and 26 of the Convention. He argues that he would be subjected to torture or other cruel, inhuman or degrading treatment or punishment, as well as discrimination, exploitation and abuse by the authorities and “civilians” in Afghanistan because of his disability, including at the hands of those who abused him sexually in the past. He asserts that there is a great risk that they would come to search for him and argues that his ethnicity, status as a child born to unmarried parents and lack of relatives render him more vulnerable, as would his disability, given that disabilities are looked down on in Afghanistan. Furthermore, his long residence in Sweden may cause a perception that he has left Islam. He states that country information and the Migration Agency’s model decision for Afghanistan indicate that persons with disabilities and without a social network have greater problems in finding employment and are thus more vulnerable. In the author’s case, the prospect of being marginalized and having difficulties in finding work due to his handicap and lack of education is supported by his history of persecution.
3.2The author claims that the cutting of fingers, as happened in his case, is a common response to “honour” crimes in Afghanistan. Upon return, he would therefore be considered guilty of a serious crime, even by those who do not know him.
3.3The author also refers to information that he became aware of only after his final decision, indicating the vulnerable position of persons with disabilities in Afghanistan, and claims that the information constitutes a new circumstance that should give rise to a new assessment by the Swedish authorities. That information also indicates a lack of access to health care and hospitals. However, the author requires help and health care for his disability and his mental health, as he suffers from an elevated risk of suicide. He refers to D. v. United Kingdom, in which the European Court of Human Rights concluded that the expulsion of the applicant, who suffered from a life-threatening clinical condition, to Saint Kitts and Nevis would amount to inhuman treatment as he would lack medical treatment, a livelihood, housing and family support. The author submits that his case manifests a similar risk, as he would be unable to maintain his own health without adequate care. He submitted to the Committee a medical report dated 12 September 2017.
3.4Similarly, the author claims that the courts in Sweden found that he would be able to work in Afghanistan, but he subsequently obtained an assessment of his potential to work that concluded that he would mainly be able to perform simple, administrative, calmer indoor work. He would thus have great difficulties in finding work in Afghanistan. He submits that this is a new circumstance that justifies the granting of international protection.
3.5The author asserts that the Migration Agency and the courts never assessed the situation that he would face upon return. They considered that it was not likely that he would again be subjected to sexual abuse upon return to Afghanistan, even though they did not question his history of sexual abuse. They considered only whether his disability was a particularly distressing circumstance, which is insufficient given that Afghanistan is a country where persons with disabilities are at risk of torture and other cruel, inhuman or degrading treatment or punishment and that the author would lack adequate help and health care.
State party’s observations on admissibility and the merits
4.1By note verbale of 2 November 2018, the State party submitted its observations on admissibility and the merits. It notes that the author applied for asylum on 25 August 2015. The Migration Agency rejected his application on 14 October 2016 and decided to expel him to Afghanistan. As the author had been determined to be an adult, the Migration Agency applied higher standards in respect of the credibility of his statements. It questioned his stated lack of knowledge of his parents’ situation, including with regard to the reasons why they had not been permitted to live together and why they had returned to the village where they had been threatened, particularly given that he had been able to give an account of his own kidnapping and removal from the village by his paternal uncle.
4.2The author had been unable to give a detailed account of how he had been threatened in his childhood. He said only that his uncle had told him that he was being threatened and that he was not allowed to go out by himself. His uncle had heard from acquaintances that his maternal family wanted to kill him because he had been born out of wedlock, but the author could not state who those acquaintances were or how they had received information about the threats. The Migration Agency questioned this account on the ground that the author had also claimed that for a time he had been in the keeping of his maternal family and that they had injured him, but had still allowed his uncle to take him to Kabul. Furthermore, he was unable to provide any concrete examples of the type of threats received. Thus, the Migration Agency considered that he had not provided reliable information about the death of his parents or the threats received in Kabul. Moreover, he had lived in Kabul for most of his life without being subjected to any harm. The Migration Agency concluded that the author had not plausibly demonstrated an individualized threat in Afghanistan. Neither were there any indications that he would otherwise be at greater risk of being subjected to violence there due to the prevailing conflict, nor any exceptionally distressing circumstances in the sense of chapter 5, section 6 of the Aliens Act and section 11 of the temporary act limiting the possibility to obtain a residence permit in Sweden.
4.3The Migration Court rejected the author’s appeal on 1 March 2017. The Court acknowledged that the general security situation in Afghanistan, including Kabul, had deteriorated, but that conditions were not such as to justify the granting of international protection to those who risked being returned there. Neither did the prevailing situation of Hazaras provide such grounds. The Court found that the author’s account of the events in his childhood could not lead to a different conclusion, as those events had occurred a long time before and were based on second-hand information. Nothing had emerged to suggest that he had been subjected to any harm in Kabul during his long residence there. If he nonetheless felt that there was a threat to himself, it must be regarded as a local threat, which he could avoid by choosing to reside in another city, such as Herat or Mazar-e Sharif. As the author is a young, employable man, such internal relocation could not be considered unjust hardship. On 11 April 2017, the Migration Court of Appeal decided not to grant leave to appeal.
4.4The author then requested a re-examination of his case, invoking impediments to the enforcement of the expulsion order. He claimed, inter alia, a fear of harassment, injury and death because of his status as a child of parents who were not married and as a social outcast. He further claimed that his lack of a social network would expose him to a risk of being recruited in the ongoing conflict, that he would risk malnutrition due to difficulties in finding work and that he had been physically injured due to the individual persecution he had suffered. The Migration Agency decided on 10 May 2017 not to grant a residence permit and not to re-examine his case on the ground that he had not invoked any new circumstances.
4.5The author appealed on the grounds that he was a minor, that his social network in Kabul was gone, that he had been harassed and mistreated in Afghanistan due to his disability and that he had been born out of wedlock. Moreover, the general security situation in Afghanistan had deteriorated, as evidenced by a major attack in Kabul on 31 May 2017. The Migration Court rejected the appeal on 15 June 2017, noting, inter alia, that the author’s age and non-marital birth had been considered by the Migration Agency and the Migration Court. Moreover, the claims concerning his disability and social network could not be deemed to constitute new circumstances forming an impediment to his expulsion. Nor could the change in the general situation in Afghanistan be qualified as such. The Migration Court of Appeal decided on 4 July 2017 not to grant leave to appeal.
4.6The author then filed a second request for re-examination, claiming an inability to perform monotonous or hard work because he was missing three fingers on his dominant hand. Because of that and his lack of education, he would be unable to find work in Afghanistan. Moreover, he had been subjected to serious sexual abuse in Afghanistan while living with his cousin. People had been looking for him and wanted his cousin to hand him over, but the cousin would say that the author was not at home. That went on for two or three months. The cousin had told him that the people knew who he was and to which family he belonged. One day, the people kidnapped him and took him to a forest where they threatened and sexually abused him. After his arrival in Sweden, they threatened his cousin’s family, who were forced to flee. He claimed that he would face a continued risk of abuse at the hands of those same people upon return to Afghanistan. He also claimed that a psychologist had ascertained an increased risk of suicide. On 26 January 2018, the Migration Agency decided not to grant a residence permit to the author and not to re-examine his case. The Migration Court rejected his appeal on 21 February 2018. The Migration Court of Appeal declined to grant leave to appeal on 8 March 2018.
4.7In a third request for re-examination, the author invoked impediments to his removal. He claimed to have submitted a complaint to the Committee against Torture and that his expulsion should be suspended to allow that Committee to render a decision in the case. The Migration Agency decided on 26 March 2018 not to grant a residence permit, not to re-examine his case and not to stay the enforcement of the expulsion order, noting, inter alia, that the Committee against Torture had not requested the State party to stay the expulsion.
4.8The State party submits that the communication is inadmissible. It notes that the author’s claims concern a risk of particular treatment in Afghanistan. The only conduct by the State party referred to in the complaint is the decision to expel the author to Afghanistan. The State party argues that any responsibility under the Convention for acts or omissions contrary to the Convention on another State’s territory is to be considered an exception to the main rule that a State party’s responsibility for Convention obligations is limited to its territory, thus requiring certain exceptional circumstances.It notes that although treatment contrary to article 15 of the Convention in another State could give rise to such exceptional circumstances, acts or omissions contrary to other articles cannot. Accordingly, it submits that the author’s claims under articles 16 and 26 should be declared inadmissible ratione materiae and ratione loci.
4.9The State party questions whether article 15 of the Convention invoked by the author encompasses the principle of non-refoulement. In considering whether this is the case, it invites the Committee to take into account that claims relating to the non-refoulementprinciple can already be lodged with several international human rights institutions. If the Committee takes the view that article 15 of the Convention includes an obligation of non-refoulement, the State party considers that this obligation should apply only to claims relating to an alleged risk of torture.
4.10The State party notes that the Convention requires a direct link between the disability of an author and the alleged violation, without creating any new rights, and submits that the communication is based on a number of issues unrelated to the author’s disability, including his Hazara ethnicity, the length of his residence in Sweden and the alleged risk of sexual abuse. The State party argues that this part of the communication should therefore be declared inadmissible ratione materiae.
4.11To the extent that the author claims that such risk of sexual abuse originates from his disability, the State party notes that such an argument was not raised in the domestic procedure. Nor did the author raise a risk of lack of access to health care required for his disability. This part of the communication is therefore inadmissible for a failure to exhaust domestic remedies.
4.12On the merits, the State party submits that the author has failed to show that he would personally face a foreseeable, present and real risk of being subjected to treatment in violation of article 15 of the Convention upon return to Afghanistan. The State party notes that Afghanistan is a party to the Convention on the Rights of Persons with Disabilities, the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and refers to reports on the human rights situation in Afghanistan. It submits that it does not wish to underestimate the concerns that may be legitimately expressed with respect to the current human rights and security situation in Afghanistan. However, its authorities have evaluated the prevailing situation in relation to the author’s individual circumstances and found that he has not substantiated a need for international protection related to the general security situation in Afghanistan.
4.13The State party observes that its authorities have thoroughly examined the author’s case, and his claimed personal risk, on the basis of domestic legislation, which is significantly broader in scope than article 15 of the Convention. The author had an initial introductory interview, another interview in the presence of a legal guardian, due to his registration as a minor at the time, and an extensive asylum investigation in the presence of the guardian and a counsel. He was also assisted by an interpreter, whom he confirmed he understood well. His appeals, lodged by a legal counsel, were examined by two courts, and the Swedish authorities additionally examined his claimed impediments to expulsion. The author was moreover invited, through his counsel, to submit observations on the minutes of the interviews and to make submissions and appeals. Therefore, he has had several opportunities to explain the relevant facts and circumstances of his case.
4.14The State party submits that its authorities have thus had sufficient information to ensure a well-informed, transparent and reasonable risk assessment of his claimed need for protection. It specifies that its authorities have examined the author’s disability in relation to his asserted risk of ill-treatment, contrary to his claim before the Committee, and that there is no well-known general risk for persons with the author’s type of disability. Moreover, given that the Migration Agency and the migration courts are specialized in the field of asylum law and practice, there is no reason to conclude that the outcome of the domestic proceedings was arbitrary or amounted to a denial of justice. As such, it is not for the Committee to decide on the correctness of the application of domestic law. The State party concludes that considerable weight must be attached to the opinions of its authorities.
4.15The State party observes that the author has not plausibly demonstrated any threat posed to him by his maternal family, despite several opportunities to explain his stated need for protection. It argues that there is no reason to question this conclusion in a forward-looking assessment.
4.16The State party notes that the author has not substantiated why or how he would be at risk due to his Hazara ethnicity. He stated before the Migration Agency that he had not experienced any discrimination on that ground in Afghanistan.
4.17The State party observes that the author does not know why he was sexually assaulted, and that his contention that a continued risk against him cannot be excluded remained unsubstantiated. The Migration Agency found that the events in question occurred many years ago and that he had not demonstrated a risk warranting international protection. Similarly, the Migration Court considered that the author was an adult and could thus choose to reside anywhere in Afghanistan. The Court noted the absence of circumstances indicating that the same perpetrators would abuse him again upon return, or that they would even learn of his return.
4.18On the claimed risk of ill-treatment due to his disability, the State party notes that the first time that the author mentioned that he had been harassed and mistreated was in an application for a re-examination of his case, after the expulsion order had become final, despite ample opportunity to present his reasons for applying for asylum. The first time that he raised it, he did not specify that claim at all. His statement was vague and not substantiated by country-of-origin information. He failed to specify the kind of treatment, when he was subjected to it and by whom. Thus, the State party’s authorities concluded that it had not been shown that he would face such a risk of social exclusion or other difficulties so as to render his expulsion contrary to the State party’s conventional obligations.
4.19Noting the author’s claimed risk of unemployment in Afghanistan owing to his disability, the State party questions how such a claim could amount to the above-mentioned risk of treatment contrary to article 15 of the Convention. Moreover, the author stated before the Swedish authorities that he had worked in Afghanistan and the Islamic Republic of Iran, that he had paid for the journey to Sweden with money he had earned from working and that he had attended regular school in Afghanistan for five years. Thus, the Migration Agency concluded that the author was a healthy, employable man capable of re-establishing himself in Afghan society. The circumstances of his case were furthermore not deemed to be exceptionally distressing. Moreover, there are large numbers of persons with disabilities in Afghanistan due to the conflict and the widespread presence of landmines and abandoned ammunition. Tolerance of and understanding for persons with physical disabilities is relatively good in Afghan society. The high unemployment rate renders access to the labour market more difficult for persons with disabilities, but there are several organizations working to safeguard their rights.
4.20The State party notes that the author does not substantiate why his claimed lack of health care in Afghanistan would violate his rights under article 26 of the Convention. The State party considers the claim under this article inadmissible ratione materiae and has therefore interpreted it in the light of article 15 of the Convention. The State party observes that the author has not explained what health care he needs and considers that this part of the communication is thus inadmissible as insufficiently substantiated. Furthermore, the medical report dated 12 September 2017 does not seem to have been invoked in the domestic proceedings. Nevertheless, in interpreting article 15 of the Convention, the State party invites the Committee to follow the approach of the judgment of the European Court of Human Rights in Paposhvili v. Belgium, in which the Court found that only very exceptional circumstancesmay raise an issue with respect to an applicant’s health under article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). The State party notes that the author is not in a situation comparable to that of the applicant in D. v. United Kingdom. Furthermore, the information cited in support of the claim of a lack of access to health care and hospitals concerns Helmand Province only.
4.21Finally, the State party observes that the communication contains no support for the allegations that the author will be perceived as having left Islam or as guilty of an honour crime because of his disability.
Author’s comments on the State party’s submission
5.1In his comments dated 28 February 2019, the author claims that the Committee’s decision in O .O.J . et al. v. Sweden does not support the State party’s observation of the main rule that a State party’s responsibility for Convention obligations is limited to its territory. Indeed, the Committee considered in that case that the removal by a State party of an individual to a jurisdiction where he or she would risk facing violations of the Convention could, under certain circumstances, engage the responsibility of the removing State under the Convention, which has no territorial restriction clause.
5.2The author argues that article 15 of the Convention should be interpreted as allowing non-refoulement claims, given that persons with disabilities constitute a particularly vulnerable group. He asserts that the exploitation, violence, abuse and lack of health care that he would face in Afghanistan amount to torture in the sense of said article.
5.3The author claims that his disability was assessed separately from his claimed need of international protection in the asylum procedure. He reiterates that persons with disabilities in Afghanistan are particularly vulnerable and that the alleged violations are highly dependent on his disability. In response to the State party’s observation that certain claims were not raised in the domestic proceedings, he states that the Migration Agency was aware of his disability at the time of the initial assessment, but that the courts never assessed it and that it should therefore be the subject of a new review. The author concludes that the elements identified by the State party are therefore admissible.
5.4Responding to the observation that his claims are insufficiently substantiated, the author states that he is unaware of a requirement of sufficient substantiation but that, in any case, the State party has not specified how he has failed to meet this standard. He requests the Committee to consider the grounds invoked cumulatively in case they are not individually found to amount to a breach of his rights.
B.Issues and proceedings before the Committee
6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
6.2The Committee has ascertained, as required under article 2 (c) of the Optional Protocol, that the same matter has not already been examined by the Committee, and that it has not been, nor is it being, examined under another procedure of international investigation or settlement.
6.3The Committee notes the State party’s submission that the communication should be declared inadmissible as being insufficiently substantiated under article 2 (e) of the Optional Protocol; that the part of the communication relating to the author’s claims under articles 16 and 26 and of the Convention should be declared inadmissible ratione materiae and ratione loci under article 1 of the Optional Protocol; that the Committee should consider whether the author’s claims under article 15 of the Convention are inadmissible ratione materiae; and that certain elements of the communication are also inadmissible ratione materiae as unrelated to his disability, or because domestic remedies were not exhausted.
6.4The Committee refers to its jurisprudence in O.O.J . et al. v. Sweden and N.L. v. Sweden, in which it noted that the removal by a State party of an individual to a jurisdiction where he or she would risk facing violations of the Convention could, under certain circumstances, engage the responsibility of the removing State under the Convention. The Committee considers that the principle of non-refoulement imposes a duty on a State party to refrain from removing a person from its territory when there is a real risk that the person would be subjected to serious violations of Convention rights amounting to a risk of irreparable harm, including but not limited to those enshrined in article 15 of the Convention. The Committee therefore considers that the principle of extraterritorial effect would not prevent it from examining the present communication under article 1 of the Optional Protocol.
6.5The Committee also notes the author’s argument that the State party has not specified in what way the communication is insufficiently substantiated. However, the State party has observed the absence of a well-known general risk in Afghanistan for persons with the author’s type of disability. The Committee notes that the Swedish authorities considered that the author’s claimed experience of mistreatment on the ground of his disability was vague and not substantiated. Furthermore, it had been found that the author was unaware of why he had been subjected to sexual abuse, that the events had occurred a long time ago and that he would be able to evade any risk by relocating, given his history of gainful employment and education. The Committee considers moreover that the author has provided no concrete reasons that allow for the conclusion that his removal to Afghanistan would amount to a violation of his rights under the Convention because of his health status. In this connection, the Committee also notes that the medical certificate in support of the author’s claims, in particular the need to address his post-traumatic stress disorder symptoms or regarding his suicidal thoughts, was submitted by the author only in the context of the present communication but had not previously been brought to the attention of the competent domestic authorities.
6.6Overall, the Committee notes the author’s disagreement with the domestic assessment made but considers that he has not provided any concrete reasons for considering that the competent authorities’ assessment, including with respect to the alleged risk arising out of his disability, alleged difficulties in finding work, need for health care, Hazara ethnicity, non-marital birth and lack of social network and the claimed consequences of the length of his residence in Sweden, was arbitrary or amounted to a denial of justice. Accordingly, and in the absence of any other element of pertinence on file, the Committee considers that the communication is inadmissible as insufficiently substantiated under article 2 (e) of the Optional Protocol.
7.The Committee therefore decides:
(a)That the communication is inadmissible under article 2 (e) of the Optional Protocol;
(b)That the present decision shall be transmitted to the State party and to the author.