An Afghan national and his brother arrived in Sweden as unaccompanied children and applied for asylum on 1 November 2015. The brother of the applicant in the proceedings before the European Court of Human Rights (ECtHR), A.H., had a visual impairment since birth and mental health problems.

The Migration Agency (Migrationsverket) assigned a municipality to be responsible for their housing and they were placed together in a family home (familjehem) where the family home parent (familjehemsförälder) was an experienced assistant nurse specialised in psychiatry. A special representative for unaccompanied minors was appointed for them, and subsequently, a public counsel was also appointed for each of them, to represent them in the asylum proceedings.

A.H.’s eyesight condition was diagnosed in 2016 as a degenerative retinal disease called Retinitis Pigmentosa. He was informed that there was no chance of improvement but rather a risk of further deterioration. Upon becoming 18 years of age, A.H. was informed that he would be removed from his family home. A.H. appealed this decision, submitting that due to his visual impairment and mental ill-health, he was completely dependent on the daily support and care of the family home and his brother. He submitted that he suffered from anxiety, depression, sleeping problems, problems with concentration and with handling his anger. He had repeatedly attempted to harm himself.

On 20 April 2017, A.H.’s asylum interview took place. In addition to describing the grounds for his asylum request, he made statements regarding suicide and self-harm. He stated that it did not matter whether he was granted asylum or not since he would commit suicide within a year. He also stated that he had previously harmed himself.

On 23 August 2017, the Migration Agency rejected the applicant’s and his brother’s asylum applications and ordered their deportation to Afghanistan. On 18 September 2017, A.H. was given notice of the decision concerning him during a personal meeting with a case officer from the Migration Agency and assisted by an interpreter, but without the presence of A.H.’s public counsel. On 20 September 2017, A.H. committed suicide.

A.H.’s brother complained to the ECtHR that the Swedish authorities had failed to fulfil their obligation to protect his brother’s life, as required by Article 2 of the European Convention on Human Rights (ECHR), by failing to take measures to prevent his brother from committing suicide.

The ECtHR ruled by four votes to three that there had not been a violation of Article 2 of the ECHR.

The court highlighted that the key element to ascertain whether there had been a violation of Sweden’s positive obligations under Article 2 of the ECHR was whether the authorities knew or ought to have known at the relevant time that A.H. posed a real and immediate risk of suicide and, if so, whether they did all that could reasonably have been expected of them to prevent that risk from materialising.

In this respect, the court found that at the time of his suicide, the authorities had more knowledge of A.H.’s situation than may generally be the case for any person merely residing in Sweden and he cannot be considered to have been completely outside their supervision and/or control. However, the court concluded that considering the lack of signs of mental distress or suicidal tendencies in the month preceding A.H.’s suicide and, in particular, during the meeting with the Migration Agency and the days thereafter, although the Migration Agency knew that the negative decision on his asylum application would be distressing for A.H., there were no signs to alert the authorities, in the days prior to A.H.’s suicide, that he was in a disturbed state of mind, rendering a suicide attempt likely, even though he had previously voiced such thoughts.

In concluding, the court found no reason to question the Chancellor’s of Justice’s and the Government’s description of the meeting where the asylum decision was handed to A.H., although no minutes or other record from the meeting were submitted to the court. 

Furthermore, the court reminded that it approaches the question of risk with a view to assessing whether it was both real and immediate. Regarding the State’s positive obligations, the court reminded that they must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.  Additionally, it noted that the court’s assessment is centred on what the authorities knew or ought to have known at the relevant time, namely in the days preceding A.H.’s suicide, and caution must be exerted when revisiting events with the wisdom of hindsight.

Dissenting opinion:

Three judges dissented from the majority’s ruling, arguing that there would have been reasonable measures that the authorities could have taken to mitigate the risk of suicide, that could have had a real prospect of altering the outcome or mitigating the harm.

The judges noted that when A.H. was informed about the rejection of his asylum application and about his removal to Afghanistan, no psychological or psychiatric support was provided to him, nor was his mental state assessed before announcing the decision to him, and he was not provided with legal support and assistance at the moment that the decision was announced. In the judges’ view, these measures would not have placed an unbearable burden on the authorities, but they would have been basic precautions, and without them it could not be concluded that there was no real and immediate risk of suicide after the delivery of a rejection decision. In this context, the judges considered that the fact that A.H. was not under the exclusive control of the authorities was irrelevant.

The judges’ considered that the authorities could not reasonably have been unaware that the negative decision would be highly distressful for A.H. given his extremely fragile mental health and his exceptional vulnerability.

Moreover, the judges added that A.H. was not monitored after he was given notice of this decision and the Migration Agency never put the applicant in contact with psychiatric care services. The judges highlighted that while personal autonomy must be respected, in some circumstances, it must be considered that persons suffering from mental health problems may be unable to make coherent complaints.

One last point on which the judges disagreed with the majority was that the question of shortcomings in the Migration Agency’s decisions was actually crucial for the complaint under Article 2, as they had an impact on the state of mind of A.H. They noted that following an internal review, the Migration Agency concluded that there had been shortcomings in the examination of the asylum requests lodged by the applicant and his brother, specifically a superficial investigation, a lack of information and deficient forward-looking assessments, which ultimately affected A.H.’s state of mind.