Background

FG is an Iranian who arrived in Sweden in November 2009 claiming asylum. In his initial asylum application, he submitted that he had been politically active against the Iranian regime. He also mentioned that he had converted to Christianity after coming to Sweden but said that he did not wish to rely on it as a ground for asylum because he considered it a personal matter. He was refused asylum on political grounds but requested a stay of deportation, relying on his conversion to Christianity as a new fact to be taken into consideration. His request was refused; however, he took the matter to the ECtHR and his expulsion was stayed by an interim ruling in October 2011 under Rule 39 of the ECtHR Rules of Court that he should not be expelled to Iran while the Court was considering his case. In the Chamber judgment of 16 January 2014, the Court rejected his application by four votes to three: he appealed to the Grand Chamber.

The arguments

In FG v Sweden [2016] ECHR 299 the applicant contended that if expelled to Iran he would face a real risk of persecution and punishment and a possible death sentence, in violation of Articles 2 (right to life) and 3 (prohibition of torture and of inhuman or degrading treatment) ECHR. The Government responded that it would not be in breach of Articles 2 and 3 to execute the removal order because the applicant’s political activities in Iran were low-level: since 2009 he had not received any new summons from the Revolutionary Court and none of his remaining family in Iran had been subjected to any reprisals by the Iranian authorities. Moreover, since in the original asylum proceedings he had specifically stated that he did not wish to rely on his conversion as a ground for asylum because he considered it a private matter, he could not rely on it now [102-3]. Sweden also pointed to various international reports suggesting that it was possible for a Christian convert to live in Iran and to practise his or her religion within the private sphere or together with others of the same religious belief [106].

The judgment

In a ruling that one is tempted to describe as a score-draw, the Grand Chamber held unanimously:

• that there would be no violation of Article 2 or Article 3 on account of FG’s political past in Iran if he were deported to his country of origin; but

• that there would be a violation of Articles 2 and 3 if FG were to be returned to Iran without a fresh and up-to-date assessment being made by the Swedish authorities of the consequences of his religious conversion.

The core of the judgment is as follows.  In his request for leave to appeal to the Migration Court of Appeal, the applicant alleged that he had relied on his conversion before the Migration Court and maintained that his fear that his conversion had become known to the Iranian authorities had increased. Nevertheless, leave to appeal was refused on 8 June 2011, after which the removal order became enforceable [154]. His subsequent request for a review was refused by the Migration Board and the Migration Court, which found that the conversion could not be considered a “new circumstance” justifying a re-examination. On 17 November 2011, the Migration Court of Appeal refused leave to appeal [155].

“156.  Thus, despite being aware that the applicant had converted in Sweden from Islam to Christianity and that he might therefore belong to a group of persons who, depending on various factors, could be at risk of treatment in breach of Articles 2 and 3 of the Convention upon returning to Iran, the Migration Board and the Migration Court, due to the fact that the applicant had declined to invoke the conversion as an asylum ground, did not carry out a thorough examination of the applicant’s conversion, the seriousness of his beliefs, the way he manifested his Christian faith in Sweden, and how he intended to manifest it in Iran if the removal order were to be executed. Moreover, in the reopening proceedings the conversion was not considered a “new circumstance” which could justify a re-examination of his case. The Swedish authorities have therefore never made an assessment of the risk that the applicant might encounter, as a result of his conversion, upon returning to Iran. Having regard to the absolute nature of Articles 2 and 3 of the Convention, though, it is hardly conceivable that the individual concerned could forego the protection afforded thereunder. It follows therefore that, regardless of the applicant’s conduct, the competent national authorities have an obligation to assess, of their own motion, all the information brought to their attention before taking a decision on his removal to Iran… [emphasis added]

Moreover, before the Grand Chamber he had submitted various documents that had not been presented to the national authorities. In light of that material and of the material previously submitted by the applicant before the national authorities, the GC concluded that he had demonstrated that his asylum claim on the basis of his conversion merited assessment by the national authorities. It was for them to take that into account, “as well as any further development regarding the general situation in Iran and the particular circumstances of the applicant’s situation” [157].

“158.  It follows that there would be a violation of Articles 2 and 3 of the Convention if the applicant were to be returned to Iran without an ex nunc assessment by the Swedish authorities of the consequences of his conversion.”

Ziemele, De Gaetano, Pinto de Albuquerque and Wojtyczek JJ submitted a joint separate opinion, Sajó J and Bianku J submitted individual separate opinions and Jäderblom J, the Swedish judge, submitted a partly concurring, partly dissenting opinion in which she was joined in respect of part 1 by Spano J.