H.M., a Syrian national, lodged an application for international protection in Sweden in 2019, claiming that he had been imprisoned in Syria because of his opposition to the Assad regime, that he was of interest to the Syrian authorities and that he had not complied with the summons for military reserve in Syria.

On 26 August 2021, the Migration Agency dismissed his application and ordered his deportation to Syria. His wife and children who also applied for asylum in Sweden also received negative decisions and they were ordered to return to Syria (for the children) and Lebanon (for the wife, considering her nationality). On appeal, the Migration Court dismissed their arguments, noting that the applicant did not risk punishment for his previous refusal to carry out military service and he did not risk being summoned for service in the military reserve. Furthermore, the court concluded that the security situation was not so severe that everyone there was at risk of being subjected to treatment warranting protection and the family could stay together if they travelled to either one of the two countries of return. A further appeal was denied by the Migration Court of Appeal. Subsequent to this, the applicant requested a residence permit in Sweden, based on employment. This was also rejected, including on appeal, because the applicant’s passport lacked his signature.

The applicant complained before the European Court of Human Rights (ECtHR) under Article 3 of the European Convention on Human Rights (ECHR) that his removal to Syria would expose him to a real risk of ill treatment as he was wanted by the Syrian authorities and, under Article 8, that the decision to deport him interfered with his family life.

The ECtHR rejected as inadmissible both complaints, for non-exhaustion of domestic remedies.

The court observed that the circumstances of the present case were exceptional considering the fall of the Assad regime after the final decision in the applicant’s domestic proceedings, and after he had lodged his application with the ECtHR and it had been communicated to the Government. The court noted that the change of regime in Syria could have a significant impact on the potential risks faced by returnees in general and by the applicant in particular, and that in this case it would be assessing potential risks in an entirely new situation, which has not yet been assessed by the national authorities.

The court observed that the applicant had at his disposal the possibility to lodge an application for re-examination, an extraordinary remedy, not per se an application for the reopening of proceedings but rather a particular mechanism whereby a re-examination can be granted if there are new circumstances relating to a person’s need of asylum, with a view to ensuring safeguards against refoulement and implementing provisions of European Union law concerning subsequent applications for international protection. Such an application for re-examination would also have a certain automatic suspensive effect, which is required for a remedy to be effective when an individual alleges that a removal would expose them to treatment contrary to Article 2 or 3 of the Convention. This automatic suspensive effect would “be in place at least until the Migration Agency determined whether a re-examination should take place or, if the Migration Agency decided not to allow a re‑examination and the applicant appealed against such a decision, until the Migration Court determined whether a stay of execution in respect of the deportation order should be issued. Should a stay of execution or a re-examination be granted, the suspensive effect of the remedy would be further extended.”

Thus, the court considered that the applicant was obliged to avail himself of that remedy both in relation to his complaint under Article 3 of the Convention and under Article 8, since that complaint was also closely linked to the assessment of whether he would face a real risk of treatment contrary to Article 3 in Syria if returned.

Thus, the court dismissed the application as inadmissible.