FIFTH SECTION

DECISION

Application no . 74467/12 Joumana ABDEL FATTAH GHALI and Ali MOHAMMAD GHALI against Sweden

The European Court of Human Rights (Fifth Section), sitting on 21 May 2013 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , Ganna Yudkivska , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 15 November 2012 ,

Having deliberated, decides as follows:

THE FACTS

1 . The first applicant, Mrs J. A. F. Ghali and the second applicant, Mr A. M. Ghali, are both stateless Palestinians, born in 1973 and 2009. They are currently in Sweden. They were represented before the Court by Ms J. Croneman, a lawyer practising in Malmö.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background and proceedings before the Swedish authorities

2 . The first applicant is married to a man, X, in Lebanon and they have four children born in 1989, 1990, 1996 and 2009. The second applicant is the youngest of the children. His two older brothers suffer from the muscle disease hereditary spastic paraplegia, for which they have undergone surgery in Lebanon . Further treatment is planned and they use, or at least have used, walking frames. The applicants ’ close family live in the Burj Barajneh camp for stateless Palestinians in Lebanon .

3 . The first applicant was granted a visa to visit relatives in Sweden between 15 November and 17 December 2008. Subsequently, she was again granted a visa between 20 August and 20 September 2009 and applied for asylum on 24 September 2009. On 25 October 2009 the second applicant was born in Sweden.

4 . Before the Migration Board ( Migrationsverket ), the first applicant claimed that X had wanted her to have an abortion when he had found out that she was pregnant with the second applicant, due the older brothers ’ medical condition. She had, however, refused to abort. She further alleged that she feared ill-treatment by X because she had travelled to Sweden and stayed there for some time. She wanted to divorce X, which could also lead to trouble for her in Lebanon. Moreover, she submitted that the second applicant suffered from symptoms of the same disease as his brothers and that he would be unable to receive proper help for his condition in Lebanon, where the family was living in a refugee camp.

5 . On 17 May 2011 the Migration Board rejected the request. The Board did not question the applicants ’ story as such. However, it considered that the first applicant ’ s claim that she would be ill-treated by X upon return to Lebanon was merely speculation on her part. In that connection, it noted that she had not been subjected to any form of persecution in Lebanon. The Board further stressed that, according to the first applicant ’ s own statement, she had planned to return to Lebanon after the expiry of her visa. It was only after she had arrived in Sweden that she had decided to apply for asylum. As to the second applicant ’ s health, the Board noted that, according to several medical certificates, he suffered from the neurological disease hereditary spastic paraplegia and would need care for the rest of his life. However, it also observed that the disease was not life-threatening. The Board further stressed that the applicants had failed to substantiate that the treatment of the second applicant in Sweden would lead to any improvement in his condition. Finally, it considered that medical treatment was available in Lebanon, albeit at high cost.

6 . The applicants appealed to the Migration Court ( Migrationsdomstolen ). Before the court, they argued that the conditions in the refugee camp were poor and that treatment outside the camp was very expensive. Moreover, they stressed the fact that they were stateless, which meant that the conditions for them in Lebanon would be difficult. Furthermore, it was unlikely that the second applicant would be able to receive proper treatment i n Lebanon. Lastly, they submitted that the first applicant would in all likelihood be considered to have insulted her family by leaving Lebanon and giving birth to the second applicant. It would be difficult for her, being a woman, to obtain protection from the authorities.

7 . On 31 May 2012 the Migration Court rejected the appeal. The court agreed with the Board ’ s assessments regarding the alleged risk of ill-treatment by X upon return. As to the second applicant ’ s medical condition, the court noted that there was no cure for the disease, but only different ways of improving his quality of life. Moreover, treatment was available in Lebanon, albeit at high cost. The court concluded that the second applicant ’ s illness, although serious, was not sufficient grounds to grant the applicants leave to remain in Sweden.

8 . On 15 August 2012, the Migration Court of Appeal ( Migrationsöverdomstolen ) refused leave to appeal.

2. Request for application of Rule 39 of the Rules of Court and further information

9 . On 15 November 2012, the applicants requested the Court to apply Rule 39 of the Rules of Court in order to stop their expulsion to Lebanon . The applicants primarily referred to the second applicant ’ s illness and submitted five medical certificates, issued between 13 December 2010 and 2 October 20 12.

10 . According to one of the certificates, dated 13 December 2010, by a chief physician in child neurology, the second applicant suffered from the neurological disease hereditary spastic paraplegia, probably the same disease as his older brothers. The certificate stated that there was no cure for the condition and that extensive support would be necessary for the second applicant ’ s positive future development. He would be in need of support from psychotherapists, occupational therapists and physicians. His mobility might gradually deteriorate but his life expectancy was normal. Moreover, his development had stagnated and he had developed muscle tightness in his feet and legs. He was not able to stand or move on his own. He had fairly good use of his arms and hands and his psychological and social development were fairly good. However, his speech development was slow.

11 . The latest certificate, issued by a chief physician on 2 October 2012, stated that the second applicant suffered from weakness and tension in the legs, which made it difficult for him to keep his balance. However, he had received treatment which had improved his condition . Thus, he was now able to stand with the help of a walker. The certificate further noted that the second applicant was in need of support from several categories of personnel and was in contact with a psychotherapist , an occupational therapist and a physician. If he did not receive the treatment he needed, there was a real risk that his condition would worsen.

12 . On 28 November 2012, the Acting President decided to grant the applicants ’ request for interim measures until 17 December 2012 and to ask the Government and the applicants for factual information regarding, inter alia , treatment available in Lebanon for the second applicant ’ s illness.

13 . In their response, the Government submitted that, for hospitalisation or treatment of chronic or acute illness, Palestinian refugees who resided in Lebanon relied on services provided by the United Nations Relief and Work Agency for Palestine Refugees in the Near East ( ‘ UNRWA ’ ), the Palestine Red Crescent Society ( ‘ PRCS ’ ), other humanitarian organisations operating in the field and private practitioners.

14 . The Government further noted that, according to UNRWA, the agency delivered basic health services in the Palestinian refugee camps and the Agency ’ s network of primary healthcare facilities and mobile clinics provided the foundation of its health services, offering preventive, general medicine and specialist care services tailored for each stage of life. UNRWA also helped refugees access secondary and tertiary care services. [1] UNRWA provided primary health care services to refugees through 29 health centres located in areas with a high density of Palestinian refugees. The services provided by these centres included child health care services, treatment of chronic diseases and provision of medication. [2] Moreover, UNRWA ’ s Relief and Social Services ran a ‘ Disability Programme ’ in the refugee camps in Lebanon. The Programme ’ s mission was, in particular, to promote, rehabilitate and equalise opportunity for persons with disabilities and increase their inclusion and full participation in the community through community-based rehabilitation approaches consistent with the Convention on the Rights of Persons with Disabilities. The Disability Programme was run by 37 community-based Rehabilitation Centres advocating the rights of refugees with disabilities. [3]

15 . The Government also observed that PRCS provided health services through five hospitals in Lebanon, one of which was situated in the Burj Barajneh camp, where the applicants resided before their arrival in Sweden. [4]

16 . Lastly, the Government emphasised that the implementation of the expulsion order would occur only if the authority responsible for the expulsion deemed that the medical condition of the second applicant so permitted.

17 . In their response, the applicants claimed that Palestinians lacked access to the public health care system in Lebanon. They submitted that the UNRWA ’ s health care clinics were understaffed and underfunded. According to the applicants, the extensive help that the second applicant needed did not fit within the scope of the primary health care that UNRWA could offer. Thus, the second applicant ’ s health care would have to be paid for. In the applicants ’ view, this would be impossible for them since he would need care for life.

18 . The applicants further referred to a briefing paper by Medical Aid for Palestinians, “ Terminal Decline? Palestinian Refugee health in Lebanon ”, highlighting the hardships and difficulties for Palestinians and, in particular, for disabled persons living in the refugee camps in Lebanon. The paper stated that the United Nations health services were increasingly under ‑ resourced. Furthermore, the main difficulties, as cited by patients, were linked to the limited range of operations and the poor quality of patient care.

19 . On 17 December 2012 the Acting President lifted the application of Rule 39 of the Rules of Court.

B. Relevant domestic law and practice

20 . The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden , are laid down in the 2005 Aliens Act ( Utlänningslagen , 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.

21 . Chapter 5, section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia , a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2, of the Aliens Act).

22 . Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in Sweden (Chapter 5, section 6, of the Aliens Act). During this assessment, special consideration should be given to, inter alia , the alien ’ s state of health.

23 . According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are r easonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1, of the Aliens Act).

C. Relevant information on medical treatment in Lebanon

24 . The Country of Origin Information Centre ( Landinfo ), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information has, in a note concerning health care in Lebanon dated 19 October 2011, stated that the Lebanese health sector is dominated by private service providers and that patients have to cover a large part of their medical expenses themselves. The report further stated that approximately half of the population is covered by a public or private health insurance scheme. The other half is partly covered by the Lebanese Ministry of Public Health. Moreover, Palestinian refugees and other non ‑ Lebanese who reside in Lebanon have access to affordable primary health care, but are not covered for hospitalisation or treatment of chronic or acute illness. These groups rely instead on services provided by the UN and humanitarian organisations, such as the UNRWA.

COMPLAINTS

25 . The applicants complained that the implementation of the Swedish authorities ’ decision to expel them to Lebanon would violate Article 2 of the Convention since the second applicant would not receive any help for his medical condition and the first applicant would risk being killed by X. They also complained that the expulsion would violate their right to family life under Article 8 of the Convention, as well as the second applicant ’ s right to education under Article 2 of Protocol No. 1 to the Convention.

THE LAW

A. The applicants ’ complaint under Article 2 of the Convention

26 . The applicants claimed that their expulsion to Lebanon would involve a violation of Article 2 of the Convention which, in relevant parts, reads:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”

27 . The Court finds that the applicants ’ complaint concerning the second applicant ’ s state of health is to be dealt with under Article 2 in conjunction with Article 3 of the Convention , which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

28 . The Court reiterates that the Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Conven tion, to control the entry, residence and expulsion of aliens (see, among other sources, Ãœner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that t he person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008).

29 . The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom , judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy , cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland , no. 38885/02, § 167, 26 July 2005).

30 . Moreover, aliens who are subject to expulsion cannot, in principle, claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that an applicant ’ s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to a breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling (see, N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008).

31 . In the present case, the applicants ’ request for asylum was carefully examined by the domestic authorities. There are no indications that these proceedings lacked effective guarantees to protect the applicants against arbitrary refoulement or were otherwise flawed. The Court will therefore continue by examining whether the information presented before this Court would lead it to depart from the domestic authorities ’ conclusions.

32 . As concerns the first applicant, the Court agrees with the domestic courts ’ conclusion that she has failed to substantiate her claim that she would risk ill-treatment by X upon return to Lebanon. This is in particular so noting that the first applicant came to Sweden on a planned visit after having been granted a visa, and at a time when she was seven months ’ pregnant, indicating that X had accepted her pregnancy and agreed to her travelling. Moreover, the first applicant had herself stated that initially she had planned to return to Lebanon upon the expiry of her visa. It follows that her claim does not raise an issue under Article s 2 or 3 of the Convention.

33 . As to the second applicant, the Court acknowledges the seriousness of his illness and the hardships he most probably would encounter in Lebanon. It also has regard to the fact that he is a young child. However, the Court observes that his condition is not life-threatening and that there is no available cure for his disease, even if he were to remain in Sweden. The Court further notes that the information available indicates that health care is accessible in Lebanon. Indeed, it appears from the documents in the case that the second applicant ’ s older brothers have undergone surgery in Lebanon and that further treatment is planned for them. The Court can see no reason why the second applicant would not be able to benefit from the same treatment as his brothers.

34 . As noted above, the fact that the second applicant ’ s circumstances in Lebanon may be less favourable than those he enjoys in Sweden cannot be regarded as decisive from the point of view of Article 3 of the Convention . Furthermore, there are no elements indicating that Sweden will enforce the expulsion order if the second applicant ’ s overall state of health is considered too serious to allow travel to his home country. This finding is supported by the enforcement procedure in Sweden, according to which implementation o f an expulsion order will occur only if the authority responsible for the expulsion considers that the medical condition of the alien so permits and according to which the responsible authority will ensure that appropriate measures are taken with regard to the alien ’ s particular needs (see, for example, Ayegh v. Sweden , (dec.), no. 4701/05, 7 November 2005, and Imamovic v. Sweden (dec.), no. 57633/10, 13 November 2012 ).

35 . Despite the seriousness of the second applicant ’ s illness, the Court considers that hereditary spastic paraplegia cannot be compared to such serious suffering which needs to be established in order for a condition to reach the high threshold set by Article 3 of the Convention, particularly where the case does not concern the direct responsibility of the Contracting State for the possible harm. For this reason, and taking into account that the second applicant is a child, the Court does not find that it would be contrary to Articles 2 or 3 if the applicants were to be expelled to Lebanon . In the Court ’ s view, the present case does not disclose the very exceptional circumstances established by its case-law (see, among others, D. v. the United Kingdom , 2 May 1997, § 54, Reports of Judgments and Decisions 1997 ‑ III, compare also with Hukic v. Sweden , (dec.) no. 17416/05, 27 September 2005).

36 . Consequently, this part of the application is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. The applicants ’ other complaints

37 . The applicants claimed that their expulsion to Lebanon would involve a violation of their right to family life under Article 8 of the Convention.

38 . As concerns this complaint, the Court observes that the applicants will be expelled to Lebanon together, where their closest family live . It follows that their expulsion would not interfere with their family life within the meaning of Article 8. The fact that the first applicant has siblings in Sweden does not alter this conclusion.

39 . Consequently, no issue arises under Article 8 of the Convention and this part of the application is thus manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

40 . The applicants also complained that their expulsion to Lebanon would violate the second applicant ’ s right to education under Article 2 of Protocol No. 1 to the Convention.

41 . The Court notes that the applicants have not elaborated on how the second applicant ’ s right to education would be breached apart from alleging that the second applicant ’ s brothers have not attended school due to their condition. As the second applicant is three years old and as they have not claimed that he would be refused schooling in Lebanon, it is not feasible to determine whether he will be denied education. Thus, the circumstances of the present case do not raise an issue under this Article.

42 . Accordingly, this part of the application is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

             Claudia Westerdiek Mark Villiger Registrar President

[1] UNRWA’s webpage, http:// www.unrwa.o r g/etemplate.php?id=28

[2] The Popular Aid for Relief and Development’s website, available at:

http://pard-lb.org/en/what-we-do/mother-and-child-care/introduction-to-mother-and-child-health-program/item/107-palestinian-in-lebanon

[3] UNRWA’s Relief and Social Services, Fact Sheet on the ‘Disability Programme’, available at: http://www.unrwa.org/userfiles/2010011931858.pdf

[4] PRCS’s website, available at: http://www.palestinercs.org/en/branches.php?bid=3