CRPD/C/18/D/28/2015 Additional observations From the State party 8.1 On 11 November 2016, the State party submitted additional observations in response to the author’s comments. The State party notes that, under chapter 12, section 22, of the Aliens Act, a refusal of entry or an expulsion order that has not been issued by a general court expires four years after the order became final and non-appealable. It notes that the Migration Court of Appeal decided not to grant the family’s application for leave to appeal on 13 November 2012 and that the decision to expel the complainants accordingly became final and non-appealable on that date. It notes that the decision to expel the author, his wife and his son is therefore statute-barred as of 13 November 2016. It also notes that when a decision on expulsion becomes statute-barred, it is no longer enforceable from that date and the applicant concerned has the possibility to reapply for a residence permit and get a new full examination by the Migration Agency of all the reasons and claims he or she would like to invoke. A negative decision by the Migration Agency is subject to appeal to the Migration Court and the Migration Court of Appeal. 8.2 The State party also notes that, as of 13 November 2016, there were no longer any enforceable decisions on the basis of which the author and his family could be expelled from Sweden. In view thereof, the State party submits that, from that date, the Committee is precluded from examining the communication as the author and his family can no longer claim to be victims of a potential violation of the Convention. It submits that the communication should therefore be declared inadmissible as incompatible ratione personae with the Convention, under article 1 of the Optional Protocol. 8.3 In the alternative, the State party submits that the communication should be declared inadmissible under article 2 (d) of the Optional Protocol for non-exhaustion of domestic remedies. It notes that, as the expulsion order has become statute-barred, the author and his family may submit a new application to the Migration Agency, with the possibility of subsequent appeals to the Migration Court and to the Migration Court of Appeal. The State party argues that this is an effective remedy within the meaning of article 2 (d) of the Optional Protocol against the alleged risk of a violation of the Convention. The State party refers to the jurisprudence of the Committee against Torture and notes that, in several cases against Sweden, complaints before that Committee have been declared inadmissible for failure to exhaust domestic remedies because the complainants had the opportunity to initiate new asylum proceedings after the decision regarding their expulsion had become statute-barred.12 8.4 In response to the author’s submission of 17 June 2016, the State party reiterates that the author’s son has access to childcare and health care on an equal basis as other children residing in Sweden, including access to special support and care owing to his state of health. From the author 9. On 16 December 2016 and 6 February 2017, the author submitted comments on the State party’s additional observations. The author confirms that the decision on expulsion has become statute-barred and that a new application can be submitted before the Migration Agency. He, however, argues that at the time of the submission of the communication, the State party was in violation of the Convention, and that all domestic remedies had been exhausted. He argues that the relevant time for determining whether domestic remedies have been exhausted refers to the time of occurrence of the alleged violation of the Convention. He submits that the outcome of a new proceeding initiated before the Migration Agency will be greatly affected by the previous decisions and that, in reality, only information pertaining to events that have occurred after the last decision was issued will be relevant. He also submits that, owing to new legislative amendments, the possibility of receiving a positive outcome after submitting a new application is worse than before. 12 See Committee against Torture, communications No. 58/1996, J.M.U.M. v. Sweden, decision adopted on 15 May 1998; No. 170/2000, A.R. v. Sweden, decision adopted on 23 November 2001; and No. 365/2008, S.K. and R.K. v. Sweden, decision adopted on 21 November 2011. 11