Human Rights Watch is writing as a matter of urgent concern regarding the case of Hanan Attia. Human Rights Watch is deeply concerned that Ms. Attia and her children were not afforded access to a full and fair asylum determination procedure when they first applied for asylum in Sweden, and that the national security concerns surrounding the case of Ms. Attia’s husband, Ahmed Hussein Mustafa Kamil Agiza, have unduly prejudiced any independent claims that Ms. Attia and her family might have to remain in Sweden.
As you are aware, Ms. Attia and her children first filed for asylum along with Mr. Agiza as a family unit in September 2000. The Swedish Migration Board (Migrationsverket) determined that Mr. Agiza could have a well-founded fear of persecution if returned to Egypt. The case, however, was turned over to the government based upon secret evidence provided to the Migration Board by the Swedish Security Police (SÄPO) alleging that Mr. Agiza’s case raised national security concerns because he had been formerly tried and sentenced in absentia to twenty-five years in prison by a military tribunal in Egypt on terrorism-related charges. The secret evidence against Mr. Agiza was not disclosed to him or to his lawyer. In December 2001, the government made a final determination that Mr. Agiza was subject to exclusion from protection in Sweden based on these national security concerns. Mr. Agiza was subsequently expelled from Sweden to Egypt, following diplomatic assurances from the Egyptian authorities that he would not be subject to the death penalty, or to torture or inhuman treatment or punishment, and that he would be afforded a fair re-trial. Mr. Agiza was not afforded an opportunity to appeal his exclusion from protection in Sweden or the order for his expulsion. He has been in prison in Egypt for two years and, to date, no trial has been scheduled.
The government’s intervention in Mr. Agiza’s asylum case had the result of also excluding the rest of the family unit, Ms. Attia and the five children, from protection in Sweden. Ms. Attia was not permitted to appeal her exclusion, and subsequently filed an application with the U.N. Committee against Torture (CAT), seeking a decision from the Committee that she would be at risk of torture if returned to Egypt. In November 2003, the CAT ruled that Ms. Attia had not substantiated her claim, and that her removal to Egypt at the present time would not constitute a breach of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Ms. Attia’s lawyer then filed an application with the Aliens Appeals Board on her and her children’s behalf for leave to remain in Sweden on humanitarian grounds due to the debilitating mental and emotional state of various family members and in light of their integration into Swedish society over a number of years.
Human Rights Watch is deeply concerned that Ms. Attia and her children were never afforded access to a full and fair asylum determination procedure. The Swedish government subjected the entire family to exclusion from any form of refugee protection, but has never claimed that Ms. Attia and her children are a threat to national security and should be excluded from refugee protection based on a full and fair assessment of their claims. The United Nations High Commissioner for Refugees’ (UNHCR) Guidelines on International Protection: Application of the Exclusion Clauses (September 2003) states that the “right to family unity” should operate in favor of dependants, not against them: “Thus, where the main applicant is excluded, family members are not automatically excluded as well. Their claims to refugee status would need to be determined on an individual basis. Such claims are valid even where fear of persecution is a result of the relationship to the excluded relative. Family members are only excluded if there are serious reasons for considering that they too are individually responsible for excludable crimes” (Background Note on the Application of the Exclusion Clauses, paragraph 94). To our knowledge, the Swedish government has not determined that Ms. Attia and her children are excludable from protection because they are individually responsible for excludable crimes.
Moreover, we are deeply concerned that the Swedish authorities employ the “best interest of the child” standard with respect to any decisions affecting Ms. Attia’s minor children, in conformity with the U.N. Convention on the Rights of the Child and with the UNHCR guidelines on exclusion. These require that all decisions regarding exclusion take into account the best interests of any children affected by a possible exclusion decision.
Human Rights Watch thus calls on the Swedish government to permit Ms. Attia and her children to file a new application for asylum in their own right. We also urge those authorities involved to use the “best interest of the child” standard for any decisions implicating the welfare of Ms. Attia’s minor children.
We are also concerned that the negative decision by the Committee against Torture (CAT) has prompted the Swedish Aliens Appeals Board to assume that no threat exists to Ms. Attia and her children if they are forcibly returned to Egypt. We remind the Swedish government that the requirements for finding a violation of article 3 of the CAT are more restrictive than the obligation of nonrefoulement under both the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Refugee Convention) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The Refugee Convention requires a well-founded fear of persecution that threatens a refugee’s life or freedom for reasons of race, religion, nationality, membership of a particular social group or political opinion (Article 1.A.2). Recognized forms of persecution include, but are not limited to, discrimination; harassment; torture; ill-treatment, including physical and psychological abuse; and sexual violence. A new asylum application lodged by Ms. Attia in Sweden would necessarily have to consider a wider array of potential threats to her and her children’s lives and freedom than their risk of torture exclusively. It is important to note that other U.N. mechanisms, including the Human Rights Committee and the Special Rapporteur on Torture, have expressed concern that Ms. Attia was not granted a full and fair asylum determination procedure in the first instance, and that she should be accorded such a procedure in conformity with Sweden’s international obligations.
Moreover, Sweden’s nonrefoulement obligation under article 3 of the ECHR—the prohibition against torture, inhuman or degrading treatment or punishment—is also broader than the prohibition against torture under the CAT. Ms. Attia’s case must thus be evaluated in light of relevant European Court jurisprudence, including, among other cases upholding the prohibition of refoulement, the 1996 case of Chahal v. United Kingdom. The diplomatic assurances proffered by the Egyptian government for Mr. Agiza apparently include Ms. Attia and her children. However, the circumstances surrounding the possible return of Ms. Attia and her family to Egypt should be distinguished from those surrounding Mr. Agiza’s expulsion and transfer to detention in an Egyptian state prison, where he remains to date.
The Chahal case reaffirmed the prohibition against returning a person to a country where there are grounds to believe that he or she would be at risk of torture or other forms of ill-treatment. The Chahal principle is relevant in at least two additional key respects—it prohibits the return of a person from a Council of Europe member state based on diplomatic assurances from a receiving country where the practice of torture is persistent and entrenched, and it takes into account the ability of a receiving government to gain effective control over those who might perpetrate abuses amounting to a violation of ECHR article 3. Egypt is a country where torture and ill-treatment are routinely practiced. This has been repeatedly acknowledged by a wide array of international actors, including the United Nations and various nongovernmental organizations, and by individual states, including the United States in its annual country reports on human rights practices around the world. Moreover, the European Court held in Chahal that, although it did not doubt that the Indian government offered diplomatic assurances in good faith, many of the forces that perpetrated acts of torture and ill-treatment were not in the effective control of the government.
These same considerations should govern any assessment of Ms. Attia’s return to Egypt in conformity with Sweden’s ECHR obligations. A new asylum determination procedure would presumably reveal the facts of such actual and potential persecution. But Sweden must also assess Ms. Attia’s case on the basis of its ECHR obligations and the limits the European Court jurisprudence places on reliance upon diplomatic assurances as a safeguard to violations of the nonrefoulement obligation.
Finally, Human Rights Watch is concerned that the Aliens Appeals Board did not fully and fairly assess the humanitarian concerns presented in Ms. Attia’s final application for leave to remain in Sweden, which was rejected just this week. Ms. Attia was subjected to an unfair asylum procedure and prohibited from access to an effective appeal. Her husband was expelled to and imprisoned in Egypt pursuant to an unfair trial in absentia. Ms. Attia and some of her children have been traumatized and remain under psychiatric care. At various times the family in Sweden has been separated and forced into hiding due to fears that they, too, would be expelled and returned to Egypt. Ms. Attia has given birth to one child in Sweden and the other children have, to varying degrees, become integrated into Swedish society. We urge the government to consider the totality of the circumstances surrounding this case in making a final determination regarding Ms. Attia’s right to remain in Sweden, and that the appropriate services are afforded to Ms. Attia and her children in light of these humanitarian concerns.
Human Rights Watch calls on the Swedish government to permit Ms. Attia to submit a new asylum application and to commence a full and fair asylum determination procedure. We also urge the government to assess this case in light of its obligations under the Convention on the Rights of the Child and the European Convention on Human Rights. Positive action in this regard will ensure that Sweden is in full conformity with its international and regional obligations, and that the Swedish state has afforded Ms. Attia and her children all the procedural protections that, in the end, will ensure her and her children’s health and safety.
Acting Executive Director
Europe and Central Asia Division
CC. Håkan Sandesjö, Director-General, Aliens Appeals Board
Lars Påhlsson, Acting Director-General, Swedish Migration Board
Theo van Boven, United Nations Special Rapporteur on Torture
Erika Feller, Director, Department of International Protection,
Raymond Hall, Director of the Europe Bureau, UNHCR
Gary Troller, UNHCR Representative in Sweden