Communicated on 1 July 2014

FIFTH SECTION

Application no . 47141/14 Yaw Simon NOMOAH against Sweden lodged on 24 June 2014

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Yaw Simon Nomoah, is a Ghanaian national who was born in 19 94 and is currently in Sweden . He is represented before the Court by M r B. Johansson , a lawyer practising in Stockholm.

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

The applicant arrived in Sweden at some point in 2011 and applied for asylum and a residence permit . He was provided with a guardian ad litem as well as a public legal counsel. Before the Migration Board ( Migrationsverket ), he stated that he had lived in Boku, Ghana, with his parents. His father had been killed a few years earlier and , i n June 2010 , t wo men had been found dead outside the apartment and his mother had been accused of having killed them . T he police had come to their house to talk with his mother. They had beaten her as well as the applicant. He had then left his home and gone to his employer with whom he had stayed for two weeks. After the police had sought for him there, he had left the country. He did not have any contact with his mother.

T he application was rejected by the Migration Board on 7 December 2011 . The Board found that the applicant had not made his identity credible but accepted that he was a minor and that he came from Ghana . T he Board found the applicant ’ s asylum story to be coherent, credible and in accordance with known country information but did not find that the applicant risked being persecuted or subject to inhuman or degrading treatment if he were return ed to Ghana. In this respect, it noted that the applicant had not in any way been involved in the murder of the two men found outside his apartment and that it was normal that the police had been looking for him. The Board did not find that he risked being imprisoned for the murders. As regards the fact that the applicant was a minor, the Board found that he had his mother a s well as other relatives in Ghana and that there were also several orphanages in the country. In conclusion, it found that the applicant was not in need of international protection. It found no other reason to grant him a residence permit.

The applicant appealed against the decision to the Migration Court ( Migrationsdomstolen ) , maintaining his claims and adding some information relating to his personal status. He also added that he had received information that the police had sought for him and claimed that he had been involved in the murders , and that they had stated that his mother would never come back. He did not have a good relationship with his relatives and they would not accept hi m if he returned.

On 24 February 2012, the Migration Court, after having held an oral hearing, upheld the Board ’ s decision. It agreed with the Board that it was natural that the police wanted to get into contact with the applicant due to the murder of the two men. Concerning the applicant ’ s new claim , that he was now considered as a suspect, it was found to be hearsay. The court also found that he had provided inconsistent information and thus lack ed in credibility . I t also found that the information provided by the applicant regarding his personal status was not credible. In conclusion, it found that the applicant was not in need of international protection and found no other reason to grant him a residence permit. O ne lay judge was of a dissenting opinion and wanted to grant the applicant a residence permit.

The applicant has stated to the Court that he appealed to the Migration Court of Appeal ( Migrationsöverdomstolen ) , which refused leave to appeal. However, he has not submitted the decision to the Court.

The applicant then asked for reconsideration of his case before the Migration Board and asked that the Board should provisionally stop the expulsion. He stated that he had been diagnosed with ALS ( Amyotrophic Lateral Sclerosis ) and submitted a medical certificate , dated 23 October 2013, from his treating physician , a specialist physician working in the neurology clinic at the Uppsala University Hospi t al . T he certificate stated that the applicant had been diagnosed with ALS, which would lead him to become paralys ed and, inter alia , affect his ability to swallow and breath. It also stated that his health status was decreasing rapidly, meaning that he would soon not be able to walk, talk or eat. His life expectancy was estimated to between two and three more years.

The Migration Board decided on 19 November 2013 to provisionally stay the enforcement of the expulsion order.

At various points in time, the applicant then submitted new medical certificates to the Board. In the last one submitted by the applicant ’ s treating physician, dated 13 February 2014, it was stated that the disease had continued to progress rapidly. H is hands were weaker, he had troubles dress ing himself, to hold cutlery in his hands and to cut his own food. Another medical certificate , dated 8 September 2013 , by another specialist physician in the sa me hospital, was also submitted. It stated that patients with ALS generally die of respiratory failure and there is no treatment; only a specific antiretroviral drug treatment and some symptom relieving treatments and medical aids such as ventilators and tube feeding.

Before deciding the case, the Migration Board requested the applicant ’ s treating physician if it would be possible for the applicant to travel to Ghana , and if so, what actions would be required in order to enable the transfer. I n a certificate , dated 26 March 2014 , the treating physician refused to answer since she considered such a transfer to be unreasonable and inhumane, and that it thus would be unethical for her to give her opinion o n the matter. She further stated that the applicant had a very low function in his hands and arms which made daily activities hard for him. His ability to walk was severely affected and he had started to have clear difficulties to swallow. He had respiratory problems at night. Due to his health status, he would obviously not be able to work if he returned to Ghana.

On 27 May 2014, the Migration Board revoked the interim decision and refused to reconsider the case. It based its decision on the fact that according to a reply , dated 29 January 2014 , by the Medical Advisors ’ Office BMA, Immigration and Naturalisation Service in the Netherlands , it was possible to receive treatment for ALS in Ghana in the teaching hospitals in Accra, Kumasi and Tamale. However, it was not possible to receive a ventilator at home although it was available at hospitals. The medicine needed by the applicant could be procured through private arrangements if needed within about one week. According to the Board, t he fact that he might have to pay for the care himself did not mean that he should be granted a residence permit. It also referred to judgments by the Court ( Bensaid v. the United Kingdom , no. 44599/98, ECHR 2001 ‑ I , and N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008 ) in which the Court had found no violation of Article 3 . Furthermore, it took into account an opinion, dated 8 May 2014 , and issued by a n indepen de nt physician . It stated that it would be possible for the applicant to travel back to Ghana, if he was assisted by someone who would help him walk, eat and use the toilet on the plane. Thus, i n conclusion, the Board found that there were no such new circumstances that could lead to the granting of a residence permit and that therefore it would not reconsider the case. The decision could not be appealed against.

The applicant then again asked for reconsideration of his case before the Migration Board, maintaining his claims and arguing that the Board had made an incorrect evaluation of his case. The request was rejected by the Migration Board, on 23 June 2014, as it found no reason to deviate from its previous decisions.

COMPLAINT

The applicant complains under Article 3 of the Convention that, if deported from Sweden to Ghana, he would not receive adequate medical treatment and care for his illness in Ghana and would thus die within a near future.

QUESTION S TO THE PARTIES

In light of the applicant ’ s health condition, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order was implemented?

To the applicant only:

1 . What relatives does the applicant have in Ghana? Has he had any contact with them since he arrived in Sweden?

2 . The applicant is requested to submit a new medical certificate regarding his current medical status.