THIRD SECTION

FINAL DECISION

Application no. 20283/09 by Zyna HALILOVA and Others against Sweden

The European Court of Human Rights (Third Section), sitting on 19 January 2010 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura , Corneliu Bîrsan , Alvina Gyulumyan , Egbert Myjer , Luis López Guerra , Ann Power , judges, and Santiago Quesada, Se tion Registrar ,

Having regard to the above application lodged on 18 April 2009,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the partial decision of 13 October 2009 ,

Having deliberated, decides as follows:

THE FACTS

The first, second and third applicants, Mrs Zyna H alilova and her children Roza and Murad , are Kazakh nationals who were born in 1965, 1988 and 1990 respectively . The fourth applicant, Mr Fauzi Mama, is a Swedish national, born in 1960, and the common-law husband of the first applicant. The fifth applicant, Emil, is a Swedish national, born in 2007, and the son of the first and fourth applicants. They are all currently living together in Sweden and are represented before the Court by Mr M. Williams , a refugee counsellor in V ästerås. The Swedish Government (“the Government”) are represented by their Agent, Mrs C. Hellner, of the Ministry for Foreign Affairs .

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

On 13 January 2005 the first, second and third applicants applied for asylum and residence permits in Sweden . Before the Migration Board ( Migrationsverket ) t he y submitted essentially that they were Kurdish and that, in Kazakhstan , they had been harassed and treated badly for many years because of their ethnicity. Moreover, at the end of November 2004, their husband/father had been picked up by police and they had neither seen him nor heard of him since. In December 2004 the police officers had returned and had evicted them from their apartment and one month later they had left the country.

On 10 August 2005 the Migration Board rejected the application. It considered that the alleged harassment seemed to have emanated from individual police officers who had acted outside their official role and could not be said to have been State-sanctioned. In the Board ’ s view, the applicants had not shown that they would risk persecution if returned to Kazakhstan and thus it concluded that they were neither refugees nor otherwise in need of protection in Sweden .

The first, second and third applicants appealed to the Aliens Appeals Board ( Utlänningsnämnden ) maintaining their claims. However, on 4 October 2005, the Aliens Appeals Board upheld the Migration Board ’ s decision in full. As no appeal lay against the decision, the deportation order became final.

On 27 April 2006 the Migration Board decided not to grant the first, second and third applicants leave to remain in Sweden on the basis of the temporary legislation in force at the time.

The Migration Board subsequently rejected repeated requests for reconsideration by the first, second and third applicants on the basis that they now lived with the fourth applicant, who was in poor mental health, and that the fifth applicant had been born and needed his mother. In their view it would be inhuman to separate the family. In its decisions, the Board noted, inter alia, that the first, second and third applicants could apply for residence permits on the b asis of family ties from a Swedish Embassy in another country.

On 15 April 2009 the police entered the applicants ’ home and detained the first and third applicants with a view to their deportation. The second applicant was not home at the time and thus was not apprehended.

On the following day, the first applicant lodged a new application with the Migration Board, submitting that both she and the fourth applicant were in very poor mental health and that the fifth applicant was completely dependent on his mother and had reacted negatively to their forced separation.

On 20 April 2009 the Board rejected the application. Having regard to all the circumstances of the case, including the fact that it would affect a child, the Board concluded that there were neither any impediments to the enforcement of the deportation order nor any grounds on which to grant the first applicant leave to remain in Sweden.

The deportation of the first and third applicants was set for 21 April 2009 but, following a request by the applicants under Rule 39 of the Rules of Court, the Court decided on 20 April 2009 to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to deport the applicants until further notice.

COMPLAINTS

The applicants complain ed under Article 8 of the Convention that their right to their family life would be violated if the deportation order were enforced as the family would be separated for an unknown period of time. Such a separation would be inhuman, and lead to irreparable damage, in particular for the fifth applicant since it would entail a prolonged separation from his mother at a very young age .

THE LAW

On 19 November 2009 the applicants ’ representative informed the Court that the applicants w ished to withdraw the application because the deportation order against them in Sweden had expired and the Swedish migration authorities therefore would reconsider their case on the merits.

The Court notes that the first, second and third applicants no longer risk deportation from Sweden and that the applicants do not intend to pursue their case. I n these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of the application. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list, and to discontinue the application of Rule 39 of the Rules of Court .

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

             Santiago Quesada Josep Casadevall Registrar President