The applicant, Mr D.M., is an Afghan national who arrived in Sweden in 2015 as a teenager or young adult.
He applied for asylum shortly after arrival. Two sets of asylum proceedings followed, concluding unsuccessfully in 2018 and 2023. During those proceedings, he was interviewed several times and represented by a lawyer.
Mr D.M. argued that he faced a risk of ill-treatment if returned to Afghanistan on several grounds. These included the general security situation, his Hazara ethnicity, his origin from Mazar-e Sharif in Balkh province, his alleged conversion to Christianity or rejection of Islam, and, later, the risk arising from his “westernisation” after nearly ten years in Sweden.
In 2023, the Swedish Migration Agency and the Migration Court rejected his claims. They found that the general security situation did not justify protection, that Hazaras were not generally at risk of treatment contrary to Article 3, and that Mr D.M. had not substantiated a genuine religious conversion or a personal risk based on westernisation. They further held that he could readapt to life in Afghanistan.
Relying on Article 3 of the Convention, Mr D.M. complained that his removal to Afghanistan would expose him to a real risk of inhuman or degrading treatment.
The European Court of Human Rights reiterated that, while States have the right to control immigration, they must not deport individuals where substantial grounds exist for believing that they face a real risk of ill-treatment.
The Court first assessed the general situation in Afghanistan. It noted that the security situation remained serious and fragile, with ongoing violence and attacks on civilians. It also observed a marked deterioration in the human rights situation following the Taliban takeover, including reports of arbitrary detention, extrajudicial killings, corporal punishment and torture. However, the Court did not consider that the general conditions alone were sufficient to prevent all removals under Article 3.
Similarly, while acknowledging that the Hazara minority faced discrimination and targeted attacks, particularly by the Islamic State of Khorasan Province, the Court did not find that Hazaras were systematically exposed to treatment contrary to Article 3.
Nevertheless, the Court emphasised that risk must be assessed cumulatively, taking into account both the general context and the applicant’s individual circumstances.
In Mr D.M.’s case, it found that the domestic authorities had failed to conduct such a cumulative assessment. Several factors increased his risk upon return.
First, his Hazara ethnicity and origin from Mazar-e Sharif placed him in a region where the Islamic State of Khorasan Province was particularly active.
Second, although the Court accepted the domestic finding that his conversion to Christianity had not been substantiated as genuine, it held that the risk of being perceived as a convert or apostate still had to be considered.
Third, Mr D.M. had spent approximately ten years in Sweden, a significant part of his life, and had adopted aspects of a Western lifestyle. The Court noted that the Swedish authorities themselves had recognised this. It considered that such characteristics could be viewed as transgressing Afghanistan’s strict religious and social norms.
The Court expressed doubt that Mr D.M. could conceal these aspects of his identity upon return, particularly given the Taliban’s strict moral code and extensive social control. It noted that even minor perceived transgressions or rumours about conduct in the West could attract adverse attention, potentially leading to detention or severe punishment, including flogging.
Taking these factors together, the Court concluded that the cumulative effect of Mr D.M.’s personal circumstances, against the background of the current situation in Afghanistan, gave rise to a real risk of ill-treatment.
Accordingly, his removal would violate Article 3 of the Convention.
The Court held that the interim measure indicating that Sweden should not deport Mr D.M. should remain in force until the judgment became final or further decision.