PARTIALLY DISSENTING OPINION OF JUDGES SPIELMANN AND POWER-FORDE

1. We voted against the finding that there has been no violation of Article 8 of the Convention.

2. Despite their traumatic experiences following the outbreak of war in Kosovo in 1999, the applicants have, under tremendously difficult circumstances, managed to maintain their essential bond as a family unit. They are of Roma ethnicity and have the added vulnerability of mental health problems, with two of them having a history of attempted suicide.

3. The Government did not dispute that the state of health of all the applicants causes grave concern and has even deteriorated after 2006 (paragraph 40). The Migration Court of Appeal accepted that there were particularly distressing circumstances to allow the third applicant to remain in Sweden (paragraphs 18 and 78). Like the dissenting judge in the Migration Court of Appeal (paragraph 20), we are of the opinion that the family ’ s situation had to be taken as a whole. It would be both unrealistic and a disproportionate interference in their family life to expect the third applicant, in his vulnerable state of health, to fend for himself in Sweden while his entire support structure is taken from him or to expect the rest of his family to leave him there and to return to an (as yet) unknown destination to live in the most precarious of conditions.

4. All the applicants claim that the decision not to grant residence permits to the first, second and fourth applicants was in breach of Article 8 of the Convention. In particular, they claim that their family life would be violated if all but the third applicant were to be deported to either Kosovo or Serbia .

5. In our view, the uncertainty concerning the country of destination makes it difficult for all the authorities concerned, including the Court, to appraise the potential impact of the impugned deportation order upon family life and, hence, the proportionality of the interference. Be that as it may, the situation of Roma in both Kosovo and Serbia is highly problematic. This results, clearly, from paragraphs 32 to 34 of the judgment which quotes extensively from reports of independent international bodies that monitor the situation ‘ on the ground ’ . [1] These reports confirm ‘ pervasive ’ institutional and societal discrimination against Roma in Kosovo in the areas of education, social services and other basic rights. They lack access to basic hygiene and medical care and are heavily dependent on humanitarian aid for survival. The reports reveal the availability of one psychiatrist per 90,000 inhabitants and they note that the mental health needs of this severely traumatised population are very high.

6. The situation in Serbia is no less reassuring. To exercise the right to access health care, registration within the system is necessary. Registration, essentially, requires a permanent place of residence without which the obtaining of ID cards becomes impossible. Being without a home, the applicants in this case are likely to face insurmountable difficulties in attempting to ac cess social security benefits.

7. It is against this background that we are of the opinion that the interference cannot, in the particular circumstances of this case, be regarded as complying with the proportionality principle. The reasoning set out in paragraphs 82-85 of the judgment is not convincing. We are, therefore, unable to follow the majority view which finds that the applicants ’ Roma ethnicity would not have such consequences that their rights under the Convention would be disrespected if they were to be deported to Kosovo or Serbia .

[1] The U.S. Department of State 2010 Country Reports of Human Rights Practices, the International Organisation for Migration’s report “Returning to Kosovo, country information” (1 December 2009) and the Non-Governmental Organisation Praxis report “Access to rights and integration of returnees on the basis of readmission agreements.