Religion – Weltanschauung – Recht [ RWR ]

In today’s Grand Chamber judgments in the case of W.H. v. Sweden (application no. 49341/10) concerning a failed asylum seeker facing expulsion the European Court of Human Rights held, unanimously, that it was appropriate to strike her application out of its list of cases.

W.H., an Iraqi national, alleged that she would be at risk of ill-treatment in Iraq as a single woman of Mandaean denomination, a vulnerable ethnic/religious minority. The Court found in particular that since the applicant had been granted permanent residence permit in Sweden – essentially on account of the authorities’ concerns over the deterioration in the security situation in her home country combined with her personal circumstance as a single woman belonging to a religious minority – any potential violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights had now been removed and her case had thus been resolved at national level. Nor did the Court find any special circumstances regarding respect for human rights as defined in the European Convention and its Protocols which required it to continue examining her case.

Principal facts

The case concerned an asylum seeker’s threatened expulsion from Sweden to Iraq, where she alleged she would be at risk of ill-treatment as a single woman of Mandaean denomination, a vulnerable ethnic/religious minority.

The applicant, W.H., is an Iraqi national who was born in 1978 and currently lives in Sweden. She is originally from Baghdad and is of Mandaean denomination. She arrived in Sweden in August 2007 and subsequently claimed asylum. Her request was examined by the Migration Board and Migration Court which rejected it on the ground that she was not in need of protection in Sweden. The Migration Court of Appeal refused leave to appeal. Subsequently, the Migration Board refused her request for reconsideration of her case on two occasions, the last on 25 August 2010. Her expulsion was, however, then suspended on the basis of an interim measure granted by the European Court of Human Rights under Rule 39 of its Rules of Court, which indicated to the Swedish Government that the applicant should not be expelled to Iraq whilst the Court was considering her case. Most recently, on 15 October 2014 W.H. was granted a permanent residence permit in Sweden.

Complaints, procedure and composition of the Court

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention, W. H. alleged that, a divorcee belonging to a small, vulnerable ethnic/religious minority, she would be at real risk of inhuman and degrading treatment if returned to Iraq. She submitted in particular that, without a male network or any remaining relatives in Iraq, she would be at risk of persecution, assault, rape, forced conversion to another religion and forced marriage. She lodged her application with the European Court of Human Rights on 27 August 2010.

In its Chamber judgment of 27 March 2014 the Court held, unanimously, that W.H.’s deportation to Iraq would not involve a violation of Article 3, provided that she was not returned to parts of the country situated outside the Kurdistan Region. The Court concluded that, although the applicant, as a Mandaean single woman, might face a real risk of being subjected to treatment contrary to Article 3 if returned to the southern and central parts of Iraq, she could reasonably relocate to the Kurdistan Region, where neither the general situation nor her personal circumstances would put her at risk of inhuman and degrading treatment. The Court further decided to indicate to the Swedish Government, under Rule 39 (interim measures) of its Rules of Court, not to deport the applicant to Iraq until the Chamber judgment became final or until further order.

On 8 September 2014 the case was referred to the Grand Chamber at the request of the applicant.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Dean Spielmann (Luxembourg), President,

Josep Casadevall (Andorra),
Guido Raimondi (Italy),
Işıl Karakaş (Turkey),
Elisabeth Steiner (Austria),
Luis López Guerra (Spain),
András Sajó (Hungary),
Mirjana Lazarova Trajkovska (“the former Yugoslav Republic of Macedonia”),
Nebojša Vučinić (Montenegro),
Kristina Pardalos (San Marino),
Angelika Nußberger (Germany),
Linos-Alexandre Sicilianos (Greece),
Faris Vehabović (Bosnia and Herzegovina),
Ksenija Turković (Croatia),
Dmitry Dedov (Russia),
Jon Fridrik Kjølbro (Denmark), judges,

Johan Hirschfeldt (Sweden), ad hoc judge,

and also Erik Fribergh, Registrar.

Decision of the Court

In the case of W. H. v. Sweden the applicant had been granted a residence permit following a decision by the Migration Board of 15 October 2014. The Board found that the prevailing general security situation in Baghdad, combined with the fact that the applicant is a woman belonging to a religious minority and lacking any social network in Iraq, meant that she was in need of protection in Sweden. Following this decision the applicant submitted that she no longer wished to pursue her application before the European Court.

The Court therefore considered that the matter had been resolved at national level. Nor did it find any special circumstances regarding respect for human rights as defined in the European Convention and its Protocols which required the Court to continue examining her case.

It was therefore appropriate to strike the application out of the Court’s list of cases.

Press release ECHR 113 (2015) 08/04/2015