FIRST SECTION

DECISION

Application no. 18568/19 Mohammad Ali JAFARI against Sweden

The European Court of Human Rights (First Section), sitting on 28 September 2021 as a Committee composed of:

Krzysztof Wojtyczek, President, Erik Wennerström, Ioannis Ktistakis, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 25 March 2019,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mohammad Ali Jafari, is an Afghan national who was born in 1997 and lives in Lund. He was represented before the Court by Ms T. Larsson, a lawyer practising in Malmö.

2. The Swedish Government (“the Government”) were represented by their Agents, Ms C. Hellner Kirstein and Ms G. Isaksson, of the Ministry for Foreign Affairs.

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

4. The applicant’s oldest brother was granted a permanent residence permit in Sweden on 29 August 2011. During these proceedings, he stated that the applicant was 10 years old. Subsequently, on 28 June 2012, the applicant’s father and other brother were granted permanent residence permits in Sweden on account of family ties to the applicant’s oldest brother. Since they had lacked acceptable identity documents, a DNA analysis was conducted, which showed that the applicant’s father and brothers were related. For financial reasons, the applicant did not come to Sweden together with his father and other brother but stayed in Afghanistan and lived with his aunt for one and a half years. The applicant then travelled to Iran and lived there with his uncle for two years.

5. On 15 January 2014 the applicant submitted an application for a residence permit in Sweden to the Swedish Embassy in Tehran, citing family ties to his father in Sweden. In support of his identity, the applicant presented a passport and submitted a copy of the same passport. The applicant stated that his uncle had arranged for the passport to be issued but submitted that he was unsure how his uncle had done this. In the same context the applicant also submitted two ‘confirmation letters’ and one identification certificate to the Swedish Embassy in Tehran. In the submitted documents, the Afghan Embassy in Tehran certified and confirmed the authenticity of the applicant’s passport. However, when the Swedish Embassy in Tehran contacted the Afghan Embassy and requested confirmation of the authenticity of the submitted documents, in a reply on 18 March 2014 the Afghan Embassy stated that the submitted confirmation letters and identity certificate were false.

6. On 15 October 2014, when the Swedish Migration Agency ( Migrationsverket ) held an oral interview in Sweden with the applicant’s father concerning the applicant’s application for a residence permit, the father stated, inter alia , that he did not know in what year, month or day the applicant was born. However, he knew that he was registered as younger than he really was in his Tazkira since he looked young. According to the applicant’s father, none of his children had held a Tazkira.

7. On 16 June 2015 the applicant’s older brother informed the Agency that the applicant had arrived in Sweden on the previous evening. However, when the applicant visited the Migration Agency’s asylum unit in Malmö on 26 June 2015, he said that he had arrived in Sweden on 25 June 2015 with the help of a smuggler and submitted that he had not brought any identity documents with him.

8. The applicant applied for asylum in Sweden on 7 July 2015. On the same day, the Migration Agency held an introductory interview with the applicant during which he claimed that he did not know where his passport was.

9. On 31 March 2016 the Migration Agency held an asylum investigation with the applicant. During this investigation the applicant stated, inter alia, that he had not brought his passport to Sweden but claimed that he had forgotten it at his work in Iran.

10. On 7 July 2017 the Migration Agency rejected the applicant’s application for asylum and a residence permit on account of family ties and decided to expel him to Afghanistan. As concerned his asylum claim, the Agency held, inter alia , that the applicant had shown his passport at the Swedish Embassy in Tehran but had subsequently claimed that he had left the passport at his work in Iran. However, the applicant had provided oral information regarding his identity. The Agency therefore considered that the applicant had made his identity plausible ( sannolik ), which was a sufficient evidentiary requirement in asylum cases. As to the merits, the Agency held that the applicant had not plausibly demonstrated that he had a well-founded fear of persecution. Nor had he plausibly demonstrated that there was a personal threat against him in Afghanistan because he was a Shia Muslim of Hazara ethnicity or because he risked being recruited by the Taliban or Daesh. Even though the Agency deemed that there was an internal armed conflict in the applicant’s home province, he was not considered to be in need of protection since he had not plausibly demonstrated that there was a real and personal threat to him in Ghazni.

11. Regarding the applicant’s application for a residence permit on account of family ties, the Migration Agency held that since the applicant had not been able to have his identity proved ( styrkt ), it could not proceed to examine his application for a residence permit. The Agency furthermore noted that, even if the applicant had been able to prove his identity, the main rule was that a residence permit on account of family ties should be applied for from the applicant’s country of origin and granted before arrival in Sweden. In this regard, the Agency also held that none of the exceptions to this main rule were applicable in the present case. The applicant could thus not be granted a residence permit on account of family ties to his father or either of his brothers.

12. The applicant appealed against the Migration Agency’s decision to the Migration Court ( Migrationsdomstolen ), requesting that the court hold an oral hearing.

13. On 15 February 2018 the Migration Court held an oral hearing with the applicant, in the presence of his public counsel and with the assistance of an interpreter. The applicant’s father was also heard as a witness. During the hearing the applicant submitted, inter alia , that he had established his identity since he had shown his passport at the Swedish Embassy in Tehran and had submitted a copy of the same passport. In any event, he claimed to have plausibly demonstrated his identity and stressed that there were other documents in support of his identity. He held that there was no evidence in support of the claim that the identity certificate and confirmation letters submitted by him to the Swedish Embassy were false. The applicant furthermore claimed that he had been a minor when he applied for a residence permit in Sweden on account of family ties to his father in 2014 and held that it was obvious that he would have been granted a residence permit had he waited for the decision.

14. During the oral hearing, the Migration Agency reiterated its position that the applicant was not considered to have established his identity or, revisiting its earlier decision, even plausibly demonstrated his identity. In this regard, the Agency pointed out that the applicant had not submitted his passport, which consequently could not be examined or verified. Furthermore, the applicant had stated that he had not been present when the passport was issued, and that his father did not know what documents had been used as the basis for the passport application. Moreover, the Afghan Embassy in Tehran had informed the Swedish Embassy in Tehran that the certificates submitted were false. The Agency stressed that it did not question the kinship between the applicant and his father and brothers. However, their kinship did not prove the applicant’s identity. For this reason alone, the Agency held that the applicant could not be granted a residence permit on account of family ties. Since the applicant was an adult, the Agency further held that there would have to be a special relationship of dependence between him and his relatives in Sweden for him to be granted a residence permit. The Agency also noted that the family had not travelled to Sweden together and that the applicant had lived away from his family for more than three years.

15. On 26 October 2018 the Migration Court rejected the applicant’s appeal. In its judgment, the court agreed with the Migration Agency’s new assessment regarding the applicant’s identity. The court accordingly held that the applicant had not plausibly demonstrated his identity, but that he had plausibly demonstrated that his habitual place of residence was the province of Ghazni in Afghanistan. As to the merits, the court noted that the applicant had not plausibly demonstrated that there was a threat against him in Afghanistan.

16. Regarding the applicant’s application for a residence permit on account of family ties the Migration Court noted that, as a main rule, the applicant’s identity must be established. The court found that there were no circumstances in the case that could lead to an exception from this rule. The applicant therefore could not be granted a residence permit on account of family ties. Moreover, the court shared the Migration Agency’s assessment that there were no such exceptionally distressing circumstances that could warrant granting a residence permit in Sweden.

17. The applicant appealed against the Migration Court’s judgment to the Migration Court of Appeal ( Migrationsöverdomstolen ), which refused him leave to appeal on 10 December 2018.

18. On 14 February 2019 the Migration Agency refused the applicant’s application for a residence permit pursuant to Chapter 12, section 18, of the Aliens Act.

19. The basic provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act ( Utlänningslagen , Act no. 2005:716).

20. There is no explicit provision in the Swedish Aliens Act stating that an applicant’s identity must be confirmed in order for him or her to be granted a residence permit based on family ties. However, according to preparatory works and case-law, this is the principal rule (see Government Bill 2005/06 :72 pp. 68-69, Government Bill 2009/10 :137 p. 17 and MIG 2011:11). In the case MIG 2011:11, the Migration Court of Appeal held that although there was no statutory definition of ‘identity’ or guiding statements in the legislative history, according to established case-law in matters concerning citizenship, ‘identity’ consisted of the applicant’s name, age and, as a main rule, citizenship.

21. In the case MIG 2012:1, the Migration Court of Appeal found that, in family reunion matters, there may be circumstances that justify applying a lower standard of proof regarding an applicant’s identity. This is, for example, the case if an applicant comes from a country where it is difficult to obtain acceptable identity documents. It may thus suffice that the applicant’s identity is made probable by confirming parenthood of a common child together with the resident in Sweden. This practice was confirmed by a later judgment where the Migration Court of Appeal reiterated that the exception only concerned parents who had lived together outside Sweden prior to their separation (MIG 2014:16).

22. In Swedish legislation, the principle of free consideration of evidence applies, which means that there are no legal limitations on what evidence a party can cite. In order for submitted identity documents to demonstrate a high probative value they must – in addition to being original documents issued by the competent authority – be reliable and issued satisfactorily (Government Bill 1997/98:178 p. 8).

23. In Swedish legislation and legal practice, different evidentiary requirements may apply regarding an established identity and possession of a passport with respect to the various grounds for residence permits. In this respect, it should be noted that the Migration Court of Appeal uses the terms ‘proved’ ( styrkt ) and ‘established’ ( klarlagd ) synonymously as a measure of the standard of proof. This signals a higher standard of proof than ‘plausible’ ( sannolikt ), but a lower one than that used in criminal law, that is, ‘established beyond reasonable doubt’ ( ställt utom rimligt tvivel ).

COMPLAINT

24. The applicant complained under Article 8 of the Convention that the Swedish authorities’ refusal to grant him a residence permit violated his right to respect for his family life.

THE LAW

25. The applicant complained that the refusal to grant him a residence permit violated his right to respect for his family life under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

26. The Government noted that the applicant’s father had left Afghanistan in 2011 and had been granted a residence permit in Sweden in 2012. It had taken the applicant almost two years to submit his application for a residence permit. Before coming to Sweden, he had lived without his father and brothers for more than three years. The applicant had not been able to prove that he was still a minor when submitting his application for a residence permit in Tehran or when arriving in Sweden. As the applicant’s father and other brother did not have refugee status, there were no insurmountable obstacles or major impediments for the applicant to be reunited with them in Afghanistan.

27. The Government further observed that the authenticity of the applicant’s passport had already been questioned by the Swedish Embassy in Tehran but could not be verified by the migration authorities since the passport was never submitted to them. The other documents submitted proving his identity had turned out to be false. The applicant’s father and other family members had provided contradictory information about the applicant’s age. At the same time, no-one appeared to know when the applicant was actually born. For these reasons the authorities had had good reason to question the applicant’s age and identity. It was thus not arbitrary or manifestly unreasonable that the domestic authorities found, by means of free consideration of evidence, that the applicant had not established his identity during the domestic proceedings – either by means of identity documents or with other documents. The domestic authorities had given due consideration to the applicant’s specific situation. A fair balance had thus been struck between the competing interests. The Government concluded that the application should be declared inadmissible for being manifestly ill ‑ founded.

28. The applicant maintained that his case should have been decided by the Swedish migration authorities much faster, as in his older brother’s case (one month) or in his father and other brother’s case (four months). They should also have undertaken a DNA analysis of the applicant, as they had done in order to establish the applicant’s father and brother’s identity, since their identity documents had not been accepted either by the Swedish authorities. There was thus no difference between the applicant’s case and that of his father and other brother. It was not relevant that the applicant’s older brother and father had given different information about the applicant’s age, since the Migration Agency had known already on 13 April 2014 that the applicant was born on 26 December 1997. Moreover, the Agency had concluded on 7 July 2017 that the applicant had made his identity probable. By not performing a DNA analysis on the applicant, the Migration Agency had not followed its own legal position and had handled the case in an unequal and unfair way.

29. The applicant further argued that it had not been his own decision to travel to Sweden but his father’s, as he was still a minor at that time. His father had made this decision since the situation in Iran had become very dangerous for illegal Afghan migrants. The Swedish migration authorities should have continued to regard him as a minor throughout the proceedings, since he had been a minor when he submitted his application. The processing time of his application should not have had any effect on the decision made. The Swedish migration authorities did not accept a Tazkira as proof of identity. Since all other identity documents and even passports were based on a Tazkira, an Afghan national could therefore never prove his or her identity and never be reunited with his or her family in Sweden. The existence of a family tie between the applicant and his father and brothers was never called into question by the migration authorities. There was thus a violation of Article 8 of the Convention.

30. The Court reiterates that the Convention includes no right, as such, to establish one’s family life in a particular country (see, inter alia , Abdulaziz, Cabales and Balkandali v. the United Kingdom , 28 May 1985, § 68, Series A no. 94; Gül v. Switzerland , 19 February 1996, § 38, Reports of Judgments and Decisions 1996 ‑ I; and Boultif v. Switzerland , no. 54273/00 , § 39, ECHR 2001 ‑ IX). Moreover, relationships between parents and their adult children do not fall within the protective scope of Article 8 unless “additional factors of dependence, other than normal emotional ties, are shown to exist” (see Emonet and Others v. Switzerland , no. 39051/03 , § 35, 13 December 2007).

31. The Court observes that the main reason why the domestic courts rejected the applicant’s application for a residence permit based on family ties was that the applicant had not proved his identity, which was a legal requirement for the grant of such a permit. When lodging his application for a residence permit at the Swedish Embassy in Tehran, the applicant had shown his passport and submitted a copy of it to the authorities. The applicant subsequently stated that he had left the passport in Iran, and therefore its validity could never be examined or verified by the Swedish migration authorities. He also submitted two ‘confirmation letters’ and one identification certificate to the Swedish Embassy in Tehran, confirming the authenticity of his passport, but on 18 March 2014 the Afghan Embassy in Tehran confirmed that the documents submitted were false.

32. The applicant argued that the Swedish migration authorities did not accept a Tazkira as proof of identity. Since all other identity documents and even passports were based on a Tazkira, an Afghan national could therefore never prove his or her identity and never be reunited with his or her family in Sweden. The Government disputed this, relying on the principle of free consideration of evidence.

33. The Court notes that there is no indication in the Court’s previous case-law that family reunions of Afghan nationals had systematically been prevented in Sweden for this reason. On the contrary, in the case Dost Ali v. Sweden the Court noted that there was no need, in accordance with Swedish case-law, to apply a lower standard of proof regarding the Afghan applicant’s identity since he came from a country where it was not difficult to obtain acceptable identity documents (see Dost Ali v. Sweden (dec.), no. 8158/18, 7 January 2020, and compare with Abokar v. Sweden (dec.), no. 23270/16 , 14 May 2019, which concerned a Somali national). Moreover, the plain fact that the reunion of the applicant’s father and other brother with the older brother in Sweden took place proves this allegation wrong.

34. According to the Swedish case-law, an ‘identity’ consists of the applicant’s name, age and, as a main rule, citizenship. The Government pointed out that the applicant had not been able to prove that he was still a minor when submitting his application for a residence permit in Tehran or when arriving in Sweden.

35. As to the applicant’s age, it appears from the applicant’s passport – the authenticity of which could never be examined and verified by the Swedish migration authorities – that the applicant was born on 26 December 1997. The applicant’s father and other family members provided contradictory information about the applicant’s age. The older brother stated that in 2011 the applicant was 10 years old. The father said that he did not know in what year, month or day the applicant was born but he knew that he was registered as younger than he really was in his Tazkira since he looked young. No Tazkira was, however, ever submitted to the migration authorities.

36. The Court notes that the only proof of the applicant’s age is his passport, the authenticity of which was already questioned by the Swedish Embassy in Tehran and which has not been submitted at any point to the Swedish migration authorities for verification. Nor is it known on the basis of which documents the passport was issued. Moreover, the older brother claimed that the applicant was younger than indicated in his passport, while his father claimed that he was actually older than indicated in his Tazkira. The Court therefore agrees with the Government that no proof has been submitted by the applicant to show that he was a minor when he submitted his application for a residence permit in Tehran or on arriving in Sweden.

37. As the applicant did not submit any documents on the basis of which his identity could be verified, the question arises as to whether a DNA analysis should have been conducted by the migration authorities. In the oral hearing before the Migration Court, the Migration Agency stressed that the issue of kinship between the applicant and his father and brothers had not been questioned in the present case but pointed out that their kinship did not prove the applicant’s identity. Moreover, since the applicant comes from a country where it is not difficult, according to Swedish case-law, to obtain acceptable identity documents, there was no need to make the applicant’s identity probable by confirming the relationship between him and his father in Sweden. In addition, the domestic authorities treated the applicant as an adult, which logically explains why it was no longer necessary to have recourse to DNA analysis. Nor was there any special relationship of dependence between the applicant and his relatives in Sweden.

38. In these circumstances, the Court finds that the Swedish authorities and courts could consider that the applicant’s identity was not established. They had thus struck a fair balance between the applicant’s interests, on the one hand, and the State’s interest in effective implementation of immigration control, on the other.

39. It follows that 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, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 October 2021.

Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President