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Sweden – Migration Court of Appeal, 19 March 2007, UM 540-06
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 5
UNHCR Handbook > Para 195
UNHCR Handbook > Para 196
UNHCR Handbook > Para 197
UNHCR Handbook > Para 198
UNHCR Handbook > Para 199
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UNHCR Handbook > Para 205
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2
The Migration Court of Appeal concluded that the Migration Court made an error in carrying out a credibility assessment before evaluating the evidence. The Migration Board and the Courts must first consider if an applicant was able to make his or her account plausible based on the evidence relied on, and only thereafter make a credibility assessment.
The Court emphasised that an applicant may have the advantage of the benefit of the doubt if his or her account appears credible. In this case, the applicant was deemed not credible and therefore the benefit of the doubt was not applied.
It is important to carefully distinguish between what constitutes evidence and information submitted by the applicant.
The applicant sought asylum in Sweden on the 7 May 2004. He stated that he was forced to flee his country of origin as he feared the regime that killed his two brothers. For several years he had tried to rouse public opinion against the regime without himself being identified. He claimed that he participated in demonstrations and that he was detained for a lengthy period from which he only escaped when in hospital.
The Migration Board found that the applicant had not established his identity, but that in the light of what had transpired his case would be considered against the declared country of origin. The Migration Board rejected the application on the grounds that the applicant did not show that it was reasonably likely that the domestic authorities had a special interest in him or that he was at risk of persecution or other ill-treatment on return.
The applicant appealed the decision to the Migration Court. The Migration Court upheld the appeal.
The applicant was granted a permanent residence permit and refugee status. The Migration Court dealt with possible inconsistencies in the applicants account as follows: The fact that the applicant’s wife was unaware of his participation in demonstrations in the 1980’s and early 1990 could be explained by the fact that the applicant was reluctant to tell her. In addition his wife’s inability to give specific details of his lengthy detention could be explained by the pressure she was under. The fact that the applicant had provided a different name at the beginning of the asylum process did not mean that he made such a false statement that his credibility could be completely called into question.
The Migration Court held that the applicant’s account regarding the death of his brothers was essentially credible, as well as the subsequent suspicion the regime showed his family. The Court also held that it was not peculiar that the applicant, out of fear of the regime, failed to engage in open political activity that could have been dangerous. Considering country of origin information and evidence that the regime was suspicious of the applicant, the Migration Court concluded that the applicant had a well-founded fear of persecution.
The Migration Court stated that an asylum seeker should be given the benefit of the doubt if his or her account appears credible and there are no good reasons to believe the opposite, or that the account conflicts with commonly known facts. Inconsistencies in the account lower credibility and if it is found that the applicant provided false information in any important aspect, there might be reason to completely question his or her credibility.
The Migration Board appealed the Migration Court's decision to the Migration Court of Appeal which held a hearing in the case.
The Migration Court of Appeal referred to a previous judgement (MIG 2006:1) where it was found that the even though the initial burden of proof was on the applicant, the Migration Board, and in some cases the Migration Court, may have to share the responsibility of establishing certain facts.
The Migration Court of Appeal emphasised that an applicant may have the advantage of the benefit of the doubt if his or her account appears credible. A necessary pre-condition for applying this principle is that the asylum applicant must have made an honest attempt to prove his account and that his overall credibility is not questioned. In this assessment, weight should be given to the account being coherent and not marked by conflicting information. The facts submitted must not be contrary to generally known facts.
The Migration Court of Appeal noted that the Migration Board, and the Courts, must consider the adequacy of the applicant's alleged grounds for protection and whether the applicant had made his asylum account plausible, through evidence submitted or that he or she was deemed to be credible and, therefore, had the advantage of the benefit of the doubt.
However, there were situations when it was enough to assess one of these two stages. The Migration Court of Appeal emphasised, however, that in the second stage, the Migration Board and the Courts must first have considered whether the applicant was able to make his account plausible by the evidence he or she relied and only thereafter make a credibility assessment. The Migration Court of Appeal therefore concluded that the Migration Court had made an error when it had made an assessment of the applicant’s credibility before the evidence had been evaluated. The Migration Court of Appeal emphasised that it was important to carefully distinguish between what constituted evidence and information submitted by the applicant.
The Migration Court of Appeal noted in its assessment of the applicant’s alleged evidence that the applicant had submitted in support of his application documents that were indisputably false because the name of the person in the documents in question had been changed. The documents had therefore such low evidential value that the Court ignored them in the further assessment. The testimonies of witnesses to support the applicant’s claim were considered vague and lacking in detail. Moreover, the Court stated that witness accounts must be assessed with great care, since they had a vested interest in the applicant being granted a residence permit. The Migration Court of Appeal noted in conclusion that the applicant was not able to prove his statement in writing or with other evidence.
In the subsequent assessment of the applicant’s credibility the Migration Court of Appeal pointed out that the fact that an applicant provided false information on his or her identity typically affects the decision on the residence permit and may also constitute grounds for revocation of the permit. According to the Migration Court of Appeal the fact that the applicant had relied on false documents in support of his asylum application greatly diminished in general the credibility of other aspects of the applicant’s account. Since untrue statements and fraudulent documents in themselves were not sufficient grounds to refuse a residence permit then a global assessment had to be carried out. From this assessment the Migration Court of Appeal concluded that the applicant’s statement was vague and remarkably poor in detail. He had been unable to provide any details about the circumstances of the repeated detentions, about how he got the alleged physical injuries or the circumstances surrounding the demonstrations, he stated that he participated in. In addition, the applicant changed his statement in some respects and made a number of conflicting statements. The Migration Court of Appeal judged that the applicant had not made his account credible and therefore could not have the advantage of the rule regarding the benefit of the doubt.
The Migration Court of Appeal granted the Migration Board's appeal and determined that the Migration Board's decision to expel the applicant could be enforced.
The individual was granted a temporary permit because of practical problems with the expulsion.
Sweden - MIG 2006:7
Sweden - MIG 2006:1