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Sweden - Migration Court of Appeal, 17 March 2010, UM 4230-09
European Union Law > Qualification Directive > Art 4
European Union Law > Qualification Directive > Art 6
European Union Law > Qualification Directive > Art 7
European Union Law > Qualification Directive > Art 8
European Union Law > Qualification Directive > Art 9
European Union Law > Qualification Directive > Art 10
European Union Law > Qualification Directive > Art 15
National Legislation > Legislation - Sweden > Aliens Act (2005:716) Chapter 4 Section 1
National Legislation > Legislation - Sweden > Aliens Act (2005:716) Chapter 4 Section 2
National Legislation > Legislation - Sweden > Aliens Act (2005:716) Chapter 5 Section 6
Sexual violence, assault and forced prostitution was not considered sufficient for subsidiary protection to be granted since it had not been shown that the authorities lacked will or were unable to offer protection.
The applicants, a single mother and her three children from Montenegro, applied for asylum on 19 February 2007. The applicant claimed that she risked being killed or abused by her brother and her father in law if returned to Montenegro. Since the death or her husband 2004 she had been subjected to rape, violence and forced prostitution by her brother in law and received threats from her father in law.
The Migration Board denied the application on the 5 October 2007 as the applicant was not found to have shown a risk of persecution or of being in need of subsidiary protection.
The Stockholm Migration Court on 5 May 2009 quashed the decision of the Migration Board and granted the family protection. On cumulative grounds, including the risk of social exclusion and the lack of a functioning male network in Montenegro, the family was considered eligible for residence permits based on exceptionally distressing circumstances according to the Aliens Act Chapter 5, Paragraph 6.
The Migration Board appealed the judgment from the Migration Court claiming it had applied incorrect standards of proof.
When determining the applicants’ need for protection the Migration Court of Appeal considered that the main applicants was not eligible for refugee status or subsidiary protection according to the Aliens Act Chapter 4, Paragraphs 1, 2and 2a (equivalent to the Qualifications Directive Articles 2(d), 9 and 15). The Migration Court of Appeal agreed with the assessment made by the Migration Court; due to the fact that the brother in law had been prosecuted and convicted for the assault he committed against the woman, the applicants were not considered to have shown that authorities in Montenegro lacked a will or ability to protect them.
Concerning the possibility of residence permits due to particularly distressing circumstances (Aliens Act Chapter 5, Section 6) the Migration Court of Appeal concluded that proper documentation of the applicants’ health conditions was lacking and that the family had not developed strong ties to Swedish society. Concerning the situation in the country of origin, including the threats, assault, sexual violence and forced prostitution the mother have been subjected to, the Court considered that the prosecution and conviction of the brother in law together with the fact that the applicant had received support from a women’s shelter in Montenegro and that she had access to a male and social network, indicated that she and her children would not risk social rejection or exclusion upon return. In summary, the Court did not find that the family met the requirements of exceptionally distressing circumstances according to the Aliens Act Chapter 5, Section 6.
The Migration Court of Appeal quashed the judgment made by the Migration Court and upheld the decision of the Migration Board – asylum was not granted.
The assessment made by the Migration Court of Appeal should be seen in the light of available country of origin information (COI), stating that less than one third of reported cases of sexual violence in Montenegro results in criminal proceedings. Moreover, the COI informs that the Montenegrin society is dominated by patriarchal structures and the said structures have a strong influence on the work of the police in protecting women at risk.