Sweden – Migration Court, 22 February 2011, UM 22097-10

Country of Decision:
Country of Applicant:
Date of Decision:
22-02-2011
Citation:
UM 22097-10
Court Name:
Migration Court Stockholm
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Headnote: 

The case concerned a single mother with no education or social network in Nigeria who, together with her daughter, was granted a residence permit because of "particularly distressing circumstances". The applicant was granted permanent residence as she was expected to have difficulty providing for herself and her daughter on return, and thereby risked being forced into prostitution.

Facts: 

The applicant sought asylum in Sweden on the 16th August 2009. On the 28th September of the same year her daughter was born, and the applicant applied for asylum on her behalf on the 11th November 2009. The applicant was an orphan and was raised by her uncle's family in Nigeria. The uncle and his wife beat the applicant. In early 2007, the applicant was in contact with some men who helped her leave Nigeria for to Italy. There she was forced into prostitution to pay off the debt she had to the men after the trip. When the applicant discovered that she was pregnant, she told the men that she had been ill. When they realised she was pregnant, they tried to force her to have an abortion. The men began to beat her and threatened to kill her. The applicant, who did not want an abortion, or to continue to prostitute herself, managed to escape to Sweden. The applicant was very afraid of the traffickers who took her to Italy and she felt completely defenceless before them. The applicant alleged that she feared being killed by the men she was in debt to if sent back to Nigeria and that her daughter would be forced to undergo genital mutilation by the applicant’s uncle, who was the applicant's only contact in Nigeria. The applicant stated that she lacked education and a social network and therefore would have difficulty taking care of herself and her daughter if returned.

Decision & Reasoning: 

The Migration Board considered that the applicant provided a detailed account but that she had not shown it was likely that there was a threat against her or her daughter in Nigeria. The Migration Board considered it unlikely that the men could find the applicant in Nigeria because they had not known each other previously. The Board also stated that the applicant could seek protection from law enforcement agencies in Nigeria and they emphasised that there are both governmental organisations and voluntary associations which offer women protection. The applicant claimed however that there was no real help available for vulnerable women in Nigeria. Given that the applicant had no social network in Nigeria the Migration Board believed that the applicant would not be pressured by relatives or friends to circumcise her daughter.

The Migration Court considered that what the applicant had been subjected to and was vulnerable to on return to Nigeria could not be attributed to any of the grounds in the refugee definition. Furthermore, the Court considered it unlikely that the applicant on return would be in danger of being forced into prostitution again or that the men would punish her in any other way, because they did not know each other previously and the men did not know where she lived. The risk that they would encounter each other in a big city like Lagos was considered minimal. As regards the risk of genital mutilation the Court agreed with the Migration Board's assessment that, from the applicant's account, there did not appear to be anyone who would push for this besides her uncle, with whom she did not wish to live. The applicant and her daughter thus did not qualify for either refugee status or subsidiary protection.

The applicant and her daughter had no lengthy residence, attachment to Sweden nor any life-threatening illness or serious disability for the Court to grant them residence permits on these grounds. On the other hand, the Migration Court when considering whether deportation to Nigeria was appropriate in an overall assessment of their personal situation found that the family should be granted a residence permit. The Court believed that the applicant would find it very difficult to support herself and her daughter because she was a single mother without education or a social network. There is a great risk that she would in order to survive be forced to prostitute herself. The Court paid particular regard in its decision to the applicant's daughter's health and development when considering the best interests of the child.

Outcome: 

The Migration Court overturned the Migration Board's decision and decided that the applicant and her daughter should be granted permanent residence because of particularly distressing circumstances. The presiding judge held a contrary opinion.

Observations/Comments: 

The dissenting opinion focused on the existence of support for women victims of trafficking, both in the state and voluntary sector, and that a woman in this situation did not meet the threshold for "exceptionally distressing circumstances". Moreover it was her treatment in Italy that was her worst experience.

The Court does not seem to accept that the risk of FGM and forced prostitution could fall under gender-based Refugee Convention grounds.

Chapter 5 Section 6 Aliens Law (2005:716)

“If a residence permit cannot be awarded on other grounds, a permit may be granted to an alien if

on an overall assessment of the alien’s situation there are found to be such exceptionally
distressing circumstances
that he or she should be allowed to stay in Sweden. In making this
assessment, particular attention shall be paid to the alien’s state of health, his or her adaptation to
Sweden and his or her situation in the country of origin.

Children may be granted residence permits under this Section even if the circumstances that
come to light do not have the same seriousness and weight that is required for a permit to be
granted to adults.”
Other sources cited: 

Prop. 2004/05:170 Ny instans- och processordning i utlännings- och medborgarskapsärenden (New instance and process order in aliens and citizenship cases).