Z.H. v. Sweden

CRPD: Rules Sweden's decision to deport Afghan would deteriorate his mental health condition

On the 11^th October, the Committee on the Rights of Persons with Disabilities made its recommendations to Sweden concerning the case of ZH. This case involved an Afghan national who applied for asylum in Sweden in 2008. His asylum claim was based on threats and persecution after he was held responsible for the death of a member of a powerful family and the risk of persecution and ill-treatment for being part of the Hazara Shia ethnic and religious minority. These claims were rejected and in 2015 the applicant made a new application bringing forward evidence from a medical report showing his diagnosis of PTSD, psychotic mental health symptoms and that his condition was life threatening due to the high risk of suicide originating from the death threats he had received in Afghanistan.

The Swedish Migration Agency noted that although the applicant's circumstances were exceptionally distressing, psychiatric treatment and the medication prescription he received in Sweden were available in Kabul justifying that there would be no risk of death or ill treatment if he was returned. The applicant unsuccessfully appealed this outcome and subsequently claimed impediments to his deportation order. The Migration Agency justified that the deterioration in the applicant's mental health was due to his rejected asylum claim and not a serious mental health problem, which therefore did not constitute new circumstances to warrant a fresh examination of his case.

To the Committee, the applicant claimed that Sweden had violated Convention rights Article 10, 15, 12 and 13. The Committee noted from jurisprudence of the CAT and ECtHR that the burden of proof is on the author of the communication to show evidence demonstrating substantial grounds of a risk of ill treatment if removed to Afghanistan. The Committee further noted that the applicant had discharged the burden of proof in this regard but that the State had failed to dispel doubts as to the risks he could face in Afghanistan. Specifically, the States continually attempted to link the applicant's ill mental health to his asylum rejection and the reports used to show the necessary medical care was available in Afghanistan revealed limited availability of psychiatric care and access to medication. The Committee subsequently consulted additional reports on healthcare in Afghanistan in which they found evidence for a lack of trained professionals, infrastructure, awareness about mental health issues and limited resources. In relation to this, the Committee outlined that Sweden was under an obligation to consider the extent to which the applicant would have access to required care in Afghanistan and if a serious doubt persists, to obtain individual and sufficient assurances from that State. Elaborating on this element, the Committee noted that in the circumstances at hand, individual assurances would have been particularly important given that the applicant left Afghanistan at a very young age -13 years ago- and that returnees can face exceptional challenges accessing healthcare services.

For these reasons, the Committee held that it is unable to conclude that the authorities' assessment of the real risk of irreparable harm was not arbitrary and therefore the applicant's removal to Afghanistan would violate his right under Article 15 of the Convention (freedom from torture and inhuman and degrading treatment). In light of this, it declared that is was not necessary to separately consider the applicant's Article 10 claims.

The Committee laid out its recommendations for Sweden which included: to provide the applicant with an effective remedy to which he would acquire compensation for legal costs incurred in the present proceedings, to review the applicant's case taking in to account the aforementioned obligations, to publish the present views and circulate them widely in an accessible manner and to take measures to prevent similar violations in the future.

Source: ELENA Weekly Legal Update 15 October 2021