A.A. v. Sweden

CAT: Committee finds return to Afghanistan in violation of Article 3 CAT

On the 20 January 2022, the Committee against Torture (CAT) issued its decision in the case of A.A. The case concerns an Afghan national, born in the Islamic Republic of Iran in 1998 after his parents moved there in fear after a family feud. He was arrested in 2015 together with his brother by the Iranian police, who warned them that they must fight in the Syrian Arab Republic or be deported to Afghanistan. The applicant and his family fled to Sweden in 2015 where they applied for asylum. Their asylum applications were initially refused. In the meantime, the applicant and his brother converted to Christianity and added this new ground to their asylum claim. The Swedish Migration Agency rejected the applicant's request for asylum on the grounds that he had failed to adequately explain his rationale for leaving Islam and becoming a Christian and decided that he had not demonstrated that his faith was genuine, nor that he would face a risk of persecution if returned to Afghanistan. On 1 August 2018, the Migration Court denied the appeal considering the applicant's responses regarding his conversion too general and vague.
 
The applicant continued his religious activities and started to post part of his religious and church experiences on Instagram, after which he began to receive threats from Afghans and Iranians on social media. In light of the events the applicant lodged a subsequent application. The Migration Court held that the facts did not present new circumstances, but rather additions to the pre-existing ones which had already been determined before, and therefore, rejected the application.
 
The Committee only focused on the procedural limb due to the recent ban on removals to Afghanistan and assurances by Sweden that once it's lifted, previously rejected cases will be subjected to fresh review in the context of the human rights situation in Afghanistan as it stands at that time.
 
The Committee considered that procedurally Sweden failed to place the evidence provided by the complainant in the context of his cultural and educational background, to obtain independent medical evidence, to consider evidence as a whole and to accurately represent the complainant's responses given their importance for the credibility assessment. It concluded that Sweden did not undertake a sufficient, individualised assessment of the risk of a foreseeable, present, personal and real risk that the complainant would be subjected to torture if deported to Afghanistan. The Committee also asked the State party to reconsider the complainant's asylum application and to refrain from deporting the applicant in the meantime.
 
With thanks to Martin Nyman for highlighting this case to the EWLU team

ELENA Weekly Legal Update – 4 February 2022