CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 octobre 2011

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margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA68D9128 { width:171.94pt; display:inline-block } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FIFTH SECTION             CASE OF HUSSEINI v. SWEDEN   (Application no. 10611/09)           JUDGMENT       STRASBOURG   13 October 2011     FINAL   08/03/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Husseini v. Sweden , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Dean Spielmann, President,   Elisabet Fura,   Boštjan M. Zupančič,   Mark Villiger,   Isabelle Berro-Lefèvre,   Ganna Yudkivska,   Angelika Nußberger, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 6 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10611/09) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national, Aftab Hussein Husseini (“the applicant”), on 23 February 2009. 2.     The applicant was represented by Mr Sture Tersaeus, a lawyer practising in Goteborg. The Swedish Government (“the Government”) were represented by their Agent, Mrs Charlotte Hellner, from the Ministry for Foreign Affairs. 3.     The applicant alleged, in particular, that an implementation of the order to deport him to Afghanistan would be in breach of Articles 3 and 8 of the Convention. 4.     On 24 July 2009 the President of the Third Section decided to apply Rule   39 of the Rules of Court, indicating to the Government that it was d esirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice. 5.     On 14 October 2009 the said President decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 6.     On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the above application was assigned to the newly composed Fifth Section. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Asylum proceedings 7.     The applicant was born in 1980 and currently lives in Sweden. 8.     On 1 September 2003 he applied for asylum and a residence permit in Sweden. In interviews before the Migration Board ( Migrationsverket ) on 5   November 2003 and 11 March 2004 the applicant stated that he was ethnic Hazara, Shia Muslim and born and raised in a small community consisting of approximately thirty-five families in the province of Ghazni. He had never been to school and was illiterate. He claimed that his problems emanated from the fact that his father was of Hazara ethnicity and his mother was of Pashtun ethnicity. As a child of mixed ethnicity, he had not been allowed to play with other children as they had been unkind to him. Since it had not been possible to leave him alone, he had always been with his father at his store in the nearest city. When the Taliban had taken power in the province, they had frequently come to the store and taken food without paying, for which reason other people in the city had believed that the family sympathised with the Taliban. The fact that his mother was Pashtun had reinforced this view. Moreover, his father had inherited everything from his grandfather, despite there being an older uncle, as the latter had been disowned due to bad behaviour. The uncle had then become very hostile to the applicant and his family. After the fall of the Taliban, the applicant’s situation had worsened as other villagers looked upon the applicant and his parents as traitors. He had been assaulted and severely beaten on several occasions and twice he had lost consciousness. They had also broken his nose and cut him with a knife. During the summer of 2003 he had been kidnapped twice and ill-treated. The first time he was locked up in a cellar for one day, and some months later he was held prisoner for two days. Each time he had been released when his father had paid a large amount of money. His father had been advised by his business partner to move but he had refused as he thought things would get better over time. Moreover, the applicant did not know if his mother had any relatives as she had never mentioned any, but they could not have moved to her home town since she had married a man from another ethnic group. 9.     In July 2003 a group of masked men had come to their house and his father had told him to leave the house, which he had managed to do by escaping through the basement. He had seen the assailants kill his mother before he fled. He had then gone to Kabul where he had found out from a taxi driver who had a route to his home town that his father had also been killed. His father’s business partner had helped him to leave the country and he had had contact with no one since he left. The applicant was convinced that he would be killed if returned to Afghanistan and that the authorities neither could nor would help him. As he was of mixed ethnicity he would not be welcome anywhere in the country. 10.     On 4 May 2004 the Migration Board rejected the application. It found that the general situation in Afghanistan was not such that the applicant could be granted leave to remain in Sweden on this sole ground. Turning to the applicant’s personal circumstances, the Board observed that it had found no evidence that persons of mixed ethnicities faced specific problems in Afghanistan. According to the applicant’s own account, ethnicity was passed down by the father, for which reason the applicant was considered a Hazara. Thus, the Board did not believe that the applicant had faced such discrimination as claimed because of his mixed ethnicity. Moreover, it noted that, again according to the applicant, everyone in his village had tried to get along with the Taliban and had paid to be well treated by them. Therefore the Board was not convinced that the applicant and his family had been suspected of being collaborators with the Taliban and ill-treated on this ground. The Board further questioned the claim that the applicant had no relatives other than his uncle, having regard to the very strong family ties in Afghan culture. In any event, his father’s business partner was still there and had shown a friendly and supportive attitude to the applicant and his family. Consequently, the Board concluded that the applicant had a social network in Afghanistan which made it possible for him to return. Since there was no other reason to grant the applicant leave to remain in Sweden, his application was rejected. 11.     The applicant appealed to the Aliens Appeals Board ( Utlänningsnämnden ), and was therefore heard again. He maintained his claims and added that he was not considered a Hazara simply because his father was one. Moreover, the suspicion that they had collaborated with the Taliban was also based on the fact that his mother was Pashtun and that the Taliban had not touched their home. The family’s poor reputation had then been used against them by his uncle. His mother had no contact with her family since she had married outside her ethnicity. Moreover, his father’s business partner had become wealthy thanks to the applicant’s father and therefore had owed him a favour. In any event, it was money from their business which had paid for the applicant’s trip. 12.     On 28 February 2005 the Aliens Appeals Board rejected the applicant’s appeal as concerned his asylum application. It noted that the U.S. Coalition Forces had established a military base in Ghazni to stabilise the area. Against this background, and for the reasons set out in the Migration Board’s decision, the Aliens Appeals Board found it unsubstantiated that the applicant would risk persecution upon return. B.     Proceedings as to a residence permit based on family ties 13.     In February 2004 the applicant married a Pakistani woman, who had been granted a residence permit in Sweden due to a previous marriage. In December 2004 the couple had a daughter and therefore, on 28   February   2005 the Aliens Appeals Board exempted the applicant from the regulation on family reunification which set out that an applicant must apply for a residence permit on the basis of family from his country of origin. The Aliens Appeals Board thus granted the applicant a temporary residence permit for one year. On 28 March 2006 the applicant was granted a permanent residence permit in Sweden on the same grounds. The couple had a son on 11 April 2006. C.     Criminal proceedings against the applicant 14.     On 3 August 2007 the applicant’s wife left him, and, together with the children, went to live at a protected address. The children were at that time approximately two and a half and one and a half years old. The estranged wife reported to the police that she had been raped and ill-treated by the applicant for the last two years and that he had also hit their daughter. She explained that she had already tried to leave the applicant in August 2006 after he had threatened her with a knife and the police had to intervene. Criminal proceedings were immediately initiated. 15.     Subsequently, the prosecution authority issued restraining orders against the applicant vis-à-vis his estranged wife and their children, under section 1 of the Restraining Orders Act ( lagen (1988:688) om besöksförbud ). 16.     On 25 March 2008 the applicant was examined by two psychiatrists at the National Board of Forensic Medicine, who in a medical report of 7   April 2008 noted that the applicant described having symptoms of PTSD and depression with suicidal thoughts. Should a sentence of imprisonment be considered, an examination of the applicant by a forensic psychiatrist was recommended. 17.     The trial took place before the District Court ( tingsrätten ) in Norrköping, and commenced on 8 April 2008, when the applicant, his estranged wife, her mother and two neighbours were heard and documentary evidence submitted. The applicant was detained on remand on 11 April 2008 and submitted for examination by a forensic psychiatrist, who concluded that the applicant was not suffering from a serious mental disturbance and that he had not committed the act of which he was accused due to serious mental disturbance. 18.     By judgment of 19 May 2008 the District Court ( tingsrätten ) in Norrköping convicted the applicant of rape and aggravated violation of a woman’s integrity ( grov kvinnofridskränkning ) committed several times a week over a period of two years, between 2005 and 3 August 2007. The violation included hitting, pushing, hair pulling and threatening to harm or kill the wife and the children, or to take the children away from the wife by taking them to Afghanistan. The District Court noted that the wife had made a very composed and credible impression. She had presented her story, which was supported by witness statements, in a calm and balanced way. 19.     The applicant was sentenced to two years’ imprisonment and five years’ expulsion from Sweden, with a prohibition on returning before 19   May 2013. 20.     In its decision to expel the applicant the District Court had regard, inter alia, to a report dated 8 April 2008 from the relevant social welfare board relating to the issue of the children’s need for contact with their father and how they would be affected by his expulsion. It pointed out that the estranged wife was afraid of the applicant and therefore still lived at a secret address. The children had not seen their father since August 2007 and the mother would only take part in visits if a contact person were present. An expulsion would most likely mean that the children would not have any contact with their father during the expulsion period. Generally, children needed close and good contact with both their parents. However, the courts and the social services also had to take into account the risk of children being subjected to violence, abuse, abduction, etc. Having regard to the crimes at issue, the overall assessment was therefore that the children’s need for contact with their father, if convicted, should be balanced against the risk of their being subjected to, or becoming witness to, violence or other degrading treatment during access. 21.     In its decision to expel the applicant, the District Court essentially stated the following. In view of the nature of the crimes and the circumstances of the case, there was reason to fear that the applicant would continue to commit crimes in Sweden. Moreover, in view of the ill ‑ treatment endured by the estranged wife and caused by the applicant, the crimes were considered to be so serious that the applicant should not be allowed to remain in Sweden. He lacked any substantial connection to Sweden other than his family, who had to live at a secret address to avoid being persecuted by him. In conclusion, the children’s need for contact with their father could not be considered to be so significant that an expulsion should be avoided. However, having regard to the children, the expulsion period was limited to five years. Finally, the Migration Board had been heard and had stated that there were no impediments to the expulsion of the applicant to his home country. 22.     The applicant appealed to the Göta Court of Appeal ( hovrätten ), before which the applicant and the estranged wife were heard, as were the witnesses who had been heard before the District Court. On 25 July 2008 the Göta Court of Appeal upheld the lower court’s judgment in full. 23.     The applicant requested leave to appeal to the Supreme Court ( Högsta domstolen ) which was refused on 17 September 2008. D.     Proceedings concerning custody and access 24.     Having left the applicant on 3 August 2007, on 17 August 2007 the estranged wife filed for divorce from the applicant and sole custody of the children. She contended that she had been ill-treated by the applicant, that he had also hit the children, and that she had reported the abuse to the police. The applicant agreed to a divorce but requested sole custody of the children. He also demanded access to the children for four hours a month in the presence of a contact person. 25.     On 9 November 2007, the District Court temporarily granted the estranged wife sole custody of the couple’s children while the proceedings were pending before it. It further decided temporarily that the applicant should not have physical contact with the children during this time. It noted in that respect that the applicant had been accused of serious crimes, including violence against the daughter. The prosecutor was considering whether to charge the applicant and, while awaiting developments in this regard, the District Court found joint custody to be incompatible with the children’s best interest. Nor should access between the applicant and the children be established under those circumstances. 26.     The applicant’s appeal against the decision was rejected by the Court of Appeal on 30 November 2007. 27.     As stated above, in the criminal proceedings the applicant was convicted on 19 May 2008 by the District Court. 28.     In the custody and access proceedings, at the request of the District Court, the social welfare board submitted a report dated 5 June 2008 concerning custody and access rights, based on four interviews with the estranged wife and two interviews with the applicant (one at home and one at the pre-trial detention centre). The social welfare board had also met the children at their home in March 2008, and spoken to the children’s nursery school and to a deaconess involved in the case. In addition, they had had access to relevant written material such as the first instance criminal judgment against the applicant and the examination conducted by the forensic psychiatrist. The report stated that in view of the applicant’s abuse of his estranged wife and the fact that he had probably also physically abused his daughter, there was a high risk that the children would be harmed if the applicant were to have custody of them. The children were very young when they last had contact with the applicant and they would have no memories of their father that they could express in words. Their need for a relationship with their father would increase when they became older. Access between them and the applicant would involve an increased risk that their secret address would become known to him. This risk should be balanced against the fact that the applicant had subjected his family to abuse and that he would probably be expelled upon release from prison. Thus, it was advised that he should not have access to the children. In order to meet the children’s need for contact with their origins, it was noted that such could be accommodated through letters. The social welfare board could distribute letters from the applicant to the children via the estranged wife, who in turn could reply within a month to report on the children’s development. 29.     The applicant and his estranged wife divorced in July 2008. 30.     On 17 September 2008 the applicant’s conviction and sentence became final. 31.     In letters of 17 and 26 June, and 1 September 2008 the applicant submitted his observations on the report from the social welfare board. He found that the report was partial to the benefit of the estranged wife and not in the interests of the children. 32.     On 4 November 2008, the District Court held a hearing in the case. Represented by legal counsel, the applicant and his ex-wife were heard. Seven witnesses were heard at the applicant’s request. A representative from the social welfare board stated that the aim had been to see both parents an equal number of times during the custody investigation but that this had not been possible because the applicant was detained on remand. In general young children were directly affected by how their mother was treated and it was therefore very likely that the applicant’s daughter would experience bad memories if she had to see the applicant. Moreover, if the children were to have contact with the applicant, they would be exposed to yet another separation from him when the expulsion order was implemented. Thus, for the moment it was not in the children’s best interests to see the applicant. 33.     By judgment of 18 November 2008, the District Court granted the ex-wife sole custody of the couple’s two children and ordered that the applicant should not have visiting rights to the children. The court noted that the ex-wife and the children lived at a secret location and that the children were well and felt safe with their mother. Moreover, the applicant was in prison, and once his sentence was served he would be expelled to Afghanistan with a prohibition on returning until May 2013. Against this background, it was most appropriate that the ex-wife be granted sole custody of the children. 34.     As concerned access rights, the court noted that according to several witness statements the applicant had been a good father to his children. However, there was a considerable risk that the children had experienced the violence to which their mother had been subjected and that seeing the applicant could bring back bad memories and disturb the sense of safety that the children now experienced. Moreover, the applicant was now in prison, from where he would only be able to have very restricted access to his children. Furthermore, even if the children were able to create a safe relationship with the applicant during such limited access, the applicant would subsequently be expelled and therefore separated from his children until May 2013. The District Court therefore found that access was not in the children’s best interest. It did not rule out that access might be established at a later point in time. 35.     The District Court only took a stand on access as requested by the applicant, namely to have physical contact with his children in the presence of a contact person. It did not take any decision regulating or limiting the applicant sending letters to his children. Practically, however, sending letters was complicated by the fact that the children lived with their mother at a secret address. Nevertheless, it was possible to send letters to the children via the Swedish Tax Agency. Also, the offer by the social welfare board to pass on letters from the applicant to the children via their mother still stood. The applicant availed himself thereof once at Christmas when he send gifts to the children. Moreover, on 23 October 2008 the ex-wife gave detailed information about the children and their everyday life to the social welfare office, and that information was subsequently communicated to the applicant. 36.     The applicant appealed against the District Court judgment of 18   November 2008 to the Court of Appeal, stating that he had requested the Government to repeal his expulsion order and that he had lodged a complaint with the European Court of Human Rights on 23 February 2009 as he considered that his expulsion to Afghanistan would be in violation of Article 3 of the Convention. Consequently, it was not certain that he would be expelled and hence his proposed expulsion was not a reason to deny him access to his children. Moreover, he owned a house and had a job and several friends, for which reason he could offer the children a stable place to visit once he was released from prison. He found it unacceptable that he had no news at all of his children and allegedly was only allowed to send two letters per year to them. The ex-wife stated that the applicant could have access to the children when they were older. 37.     On 23 March 2009 the Court of Appeal refused leave to appeal and, on 29 May 2009, so did the Supreme Court. E.     Requests for the expulsion order to be revoked 1.     Application in August 2008 38.     On 1 August 2008, the applicant requested the Government to repeal his expulsion order and grant him a residence permit in Sweden. He submitted essentially that there were problems in Afghanistan between Shia and Sunni Muslims, that he had been wrongfully convicted and that he had two children in Sweden. 39.     In a submission of 20 August 2008, the applicant stated that when the Taliban came into power in 1996 and took control of the Hazara area, his father started talking about schools and freedom with others in the Hazara group. The Taliban perceived from this that his father was dissociating himself from his religion. They tried to capture him but he went into hiding. The applicant was captured instead and imprisoned. He was ill ‑ treated for thirty-five days, which included beating and being stabbed in the back with a knife, to get him to reveal his father’s hiding place, which he refused. His father paid a large ransom for his release after thirty-five days and the applicant was admitted to hospital for over a month. A few weeks later he went with his father to the mosque, where they were captured by the Hazaras who told the applicant that he was not a Shia Muslim since his father was married to a Pashtun. They wanted him to prove his loyalty to the Shia by walking on burning coals. When he refused, they stabbed him in the shoulder. He walked on the coals and suffered serious burns to his feet. He was left alone and his father came in disguise in the middle of the night to pick him up. His father had to carry him home, where he was treated for his injuries. About a week later, he and his father went to the mosque again and there the others decided that his father should kill him and his mother, which his father refused. Then it was decided that the whole family should die and one of his father’s friends warned them of this. The applicant was twenty-one at the time. He and his parents woke up in the middle of the night to find that the house was on fire and that people were trying to get in through the window. His father fetched a weapon and his mother opened a hatch to an escape tunnel under the house. Before jumping down he saw his mother being injured. They threw down money to him and closed the hatch. He had no choice but to crawl out through the tunnel. He stood and watched while the house burned down and then went to the home of one of his father’s friends who lived in another city. This man helped him leave Afghanistan. 40.     In a submission of September 2008, the applicant added that he suffered from post-traumatic stress syndrome (PTSD), that he had tried to commit suicide, and that he had no family other than his children and a new girlfriend in Sweden. 41.     On 4 December 2008 the Government rejected the applicant’s request. It found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden. 2.     Application in January 2009 42.     In January 2009, the applicant submitted a new application, dated 31   December 2008, for revocation of the expulsion order. He added that he had not been in contact with his country of origin since he left but knew that his father’s business partner, who had helped him escape, had been killed. Since his parents had been killed and he himself had been tortured by the Taliban, his life was in great danger. He also risked being killed upon return to Afghanistan for having married a Sunni Muslim woman although he was a Shia and for having violated a Sunni Muslim woman in the acts for which he had been convicted in Sweden. Invoking anew his poor mental health, the applicant submitted some medical certificates. One certificate was dated 16   February 2009 and written by a physician at the prison. It stated that the applicant had alleged that he had been imprisoned and tortured on several occasions in Afghanistan and that the physician had seen a large number of scars on his back from cuts. He also had two scars from stab wounds to his thigh and his shin. The physician confirmed that the scars might have been caused by torture as alleged by the applicant. A second medical certificate was dated 17 April 2009 and written by a chief physician and specialist in psychiatry, and by a psychologist at the Medical Centre for Refugees. It stated that the certificate was based on the applicant’s contacts with the Centre from October 2005 to October 2008. He had begun psychotherapy at the Centre in October 2005 to talk about his background and traumatic experiences. The physicians had considered that he was clearly traumatised and had several symptoms of PTSD such as nightmares, flashbacks and anxiety. However, the applicant had been found stable in May 2006 for which reason the sessions had ended. In August 2007 the applicant had contacted the physicians again because he had been feeling unwell. When he had been arrested on suspicion of raping B., he had been placed in a cell and had experienced strong flashbacks from when he had been kidnapped and tortured for one month in Afghanistan. He had been so desperate that he had cut his wrists with a table knife and had then spent one night in the psychiatric emergency department. He had then resumed his sessions with the psychologist and had received medication to help him sleep. However, he had overdosed on the medication in October 2007 due to the strain caused by the criminal trial against him. His last session had been in April   2008, before being imprisoned, and after the judgment he had again tried to commit suicide by taking an overdose of pills. According to the two physicians, the applicant suffered from PTSD, depression, anxiety and had a serious stress reaction to his situation. He was therefore in a very fragile state mentally, with a high risk of suicide if the expulsion order were to be enforced. Thus, they concluded that there were medical-psychiatric impediments to the enforcement of the expulsion order. 43.     On 4 June 2009 the Government rejected the new request as it found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden. 3.     Application in July 2009 44.     Finally, in July 2009 the applicant submitted a third application for revocation of the expulsion order based essentially on the same grounds as the previous ones. That case is still pending before the Ministry of Justice. D.     Subsequent events 45.     On 24 July 2009 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice. 46.     On 5 August 2009, following the Court’s indication under Rule 39 of the Rules of Court, the acting Minister of Justice decided to stay the enforcement of the expulsion until further notice. 47.     The Minister also decided that the applicant should be taken into custody upon his conditional release from prison. Accordingly, the applicant was taken into custody on 11 August 2009. He was released on 28 January 2010 by decision of the Supreme Administrative Court. 48.     In the meantime, the Government requested additional information from the Migration Board about some of the issues raised in the present case. Having made an investigatory visit to Afghanistan in November/December 2009, the Migration Board concluded, inter alia, that the security situation in Afghanistan was not such that an expulsion thereto in general would entail a violation of Article 3 of the Convention. The Board noted, however, that according to various sources, the Taliban had increased their operation in Ghazni province where arbitrary killings and civilian deaths among supporters of Government forces had been reported. In Ghazni province the violence had increased mostly in the Pashtu-dominated south, while the situation was relatively calm in the Hazara-dominated northern part of the province. Thus, at the relevant time, there were impediments to enforcing expulsion orders to Ghazni province, notably due to the unstable security situation, which meant, among other things, that humanitarian organizations could not operate in the province and that there were problems for travellers on the road between Kabul and the province. 49.     On l4 June 2010 the prosecution authority issued restraining orders against the applicant vis-à-vis his ex-wife and their children, under section 1 of the Restraining Orders Act. The prosecution noted that the applicant had previously been convicted of rape and aggravated violation of a woman’s integrity regarding his former wife, and found that there was a risk that the applicant would commit a crime against, persecute or in some other way seriously harass his former wife or the children. The orders were in force for one year, that is until 13 June 2011. Violation of restraining orders is a crime under the aforementioned Act that can result in a fine or a maximum prison sentence of one year. The applicant failed to bring the decision before the courts. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Domestic law on asylum 50.     The provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act ( Utlänningslagen , 2005:716 ‑ hereafter referred to as “the Aliens Act”) which replaced, on 31 March 2006, the old Aliens Act ( Utlänningslagen , 1989:529). The Aliens Act was amended anew on 1 January 2010. The following refers to the Aliens Act in force at the relevant time. 51.     Under the previous Aliens Act, asylum applications were dealt with by the Migration Board and the Aliens Appeals Board. Under the Aliens Act in force, matters concerning the right of aliens to enter and remain in Sweden are normally dealt with by three instances, the Migration Board, the Migration Court and the Migration Court of Appeal. Thus, appeal against a decision or an order for expulsion issued by the Migration Board, which carries out the initial examination of the case, lies to the Migration Court. The Migration Board is, in principle, obliged to review its decision before it forwards an appeal to the Court. Appeal against a judgment or decision of the Migration Court in turn lies to the Migration Court of Appeal. This instance will, however, only deal with the merits of the case after having granted leave to appeal. Leave to appeal will be granted if (1) it is considered of importance for the guidance of the application of the law that the appeal is examined by the Migration Court of Appeal or (2) there are other exceptional grounds for examining the appeal. 52.     Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter   4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia , a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter   4, Section 2, of the Aliens Act). 53.     Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter   12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act). B.     Domestic law on expulsion 54.     Pursuant to Chapter 1, Article 8 of the Penal Code ( Brottsbalken , 1962:700) a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place. 55.     Provisions on expulsion on this ground are laid down in the Aliens Act. According to Chapter 8, sections 8 and 11, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person’s links to Swedish society have been taken into account. 56.     Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1, of the Aliens Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision. 57.     If the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, by virtue of Chapter 8, section 14 of the 2005 Act, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p.   193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government ( Regeringsformen ), pardon or reduce a penal sanction or other legal effect of a criminal act. C.     Domestic law on custody and access 58.     Rules concerning rights of access to children are primarily to be found in Chapter 6 of the Children and Parents Code (SFS 1949:381; hereinafter the Code). The best interests of the child must be the determining factor in all decisions concerning custody, residence and access. In the assessment of what is in the best interests of the child, particular attention shall be paid to the risk of the child or another member of the family being exposed to abuse or of the child being unlawfully abducted, retained or otherwise harmed. Particular attention shall also be paid to the child’s need for close and good contact with both parents. Regard should also be given to the wishes of the child while taking into account the age and maturity of the child (Chapter 6, Section 2 a, of the Code). 59.     A child shall have the right to access with a parent with whom he or she is not living. Access may take place by the child and the parents seeing each other or by other kinds of contact. The child’s parents have a joint responsibility to ensure that, as far as possible, the child’s need for access to a parent with whom he or she is not living is met. If both parents have custody of the child and the child is to have access to a parent with whom he or she is not living, the other parent shall provide such information about the child as will promote access, unless there are special reasons to the contrary. If the child is to have access to a parent who does not have custody or with some other person who is particularly close to the child, the information referred to in the previous sentence shall be provided by the person with custody (Chapter 6, Section 15, of the Code). 60.     The courts may decide that particular conditions or directions shall apply to the right of access, such as the presence of a contact person or where the contact should take place. However, according to the Supreme Court such directions shall be decided only in exceptional cases since too detailed directions may lessen the parents’ will to cooperate. Directions may be given if, without them, the contact would not take place at all or would only take place to a lesser extent contrary to the child’s interests. 61.     Prior to 1 July 2006 it was not explicitly stated in the Code that access could take place by means of contact other than direct contact between the child and parent, such as telephone or letters. Normally, the parents should be able to agree on the extent of such indirect contact. The municipalities also assist in reaching agreements on such contact. However, through the introduction of the new provision in Chapter 16, Section 15, of the Code, the courts have been enabled to decide that access is to take place in some other way than by the child meeting with the parent. The aim is to provide, in exceptional cases, a way of bringing about contact between a child and a parent when direct access is not an option. This may be the case for instance when the child and the parent live a considerable distance from each other or when the freedom of movement of the parent is restricted as a result of a prolonged hospital stay or similar circumstance (see Government Bill 2005/2006:99, p. 55.) 62.     According to the rules on right to access, it is in the child’s best interests to have close and good contact with both parents in most cases. However, that does not mean that the child must have contact with a parent in all circumstances. A child must have an absolute right not to be