Sweden – Migration Court of Appeal, 18 September 2006, UM 122-06

Country of Decision:
Country of Applicant:
Date of Decision:
18-09-2006
Citation:
UM 122-06
Court Name:
Migration Court of Appeal
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Sweden - Förvaltningslagen (Administrative Procedure Act) (1971:291) - Chapter 8
Sweden - Förvaltningslagen (Administrative Procedure Act) (1971:291) - Chapter 9
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 16 Section 5
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Headnote: 

The UNHCR Handbook is an important source of law concerning the procedure to determine protection needs. The Migration Court is responsible for ensuring that a case is sufficiently investigated by holding an oral hearing or otherwise investigating the ambiguities of the case, when an asylum seeker who has been rejected because of credibility grounds has submitted relevant documents that are deemed to be genuine by a Swedish embassy.

Facts: 

The applicant stated that since 1998 he was held on numerous occasions for questioning by the Egyptian police's intelligence service in order to provide information on his brother's political activities. The applicant also stated that in connection with the interrogation he was subjected to widespread beatings and torture with electric shocks. In 2001 and 2002 the applicant was arrested each time there was unrest in Egypt. The applicant referred also to a ruling by an Egyptian State Security Court in 2003. The Court sentenced the applicant, together with six other people, to three years imprisonment for, among other things, founding an illegal party.

The Migration Board rejected the applicant's asylum application because they felt there were credibility gaps in the applicant’s account. This view was based on doubts concerning the applicant's claim that he was called in for questioning because of his brother's political activities when the applicant had stated that he himself had not engaged in any political activity in Egypt and that the applicant had given the impression he did not have any detailed knowledge of his brother's business. The Migration Board also pointed out that the applicant had no problems getting a passport and identity card issued in 2002, despite the fact that the applicant said that government interest in him increased in 2001 and 2002. The Board found it remarkable that the applicant claimed to have been able to escape from a hospital where he was admitted after being arrested and imprisoned for producing pamphlets in 2002. There was also conflicting information about when the applicant found out about the court's decision and sentence. The Migration Board found it strange that the applicant did not try to find out the content of the judgment much earlier, before he travelled from Libya to Sweden, and that in the initial investigation he did not mention that he had sent for the judgment. It was only in counsel's submission that the applicant mentioned the sentence he received because of allegations that he made fliers in 2002. Furthermore, the Migration Board stated that the applicant had not helped to establish his identity by contacting his family in Egypt and asking them to send his current passport and identification card. The Migration Board gave the Swedish Embassy in Cairo the task of verifying the submitted judgment and they replied that the copy appeared to be correct.

The Migration Board's assessment was that the applicant had deliberately tried to withhold information that was essential for the assessment of the case and called into question whether he really was the person named in the judgment. The applicant appealed to the Migration Court which concurred with the Migration Board's assessment and dismissed the appeal. The applicant then appealed to the Migration Court of Appeal.

Decision & Reasoning: 

The Migration Court of Appeal concluded in its ruling that the UNHCR Handbook is an important source of law for the process of determining protection needs. The Court stated that the applicant had the burden of proof initially to prove the facts are correct, but that the obligation to determine and evaluate all relevant facts is shared between the applicant and the investigator. According to the UNHCR Handbook, an asylum seeker who has presented a credible account should be given "the benefit of the doubt" in cases where the reasons advanced in general are sufficient to grant protection. According to chapter 8 of the Administrative Procedure Act, the Court has a responsibility to ensure that a case will be investigated to the extent that the circumstances of the case require. The Migration Court of Appeal stresses that these principles are particularly important when protection grounds are presented because the decisions are irreversible and mistakes can result in individuals being exposed to serious human rights violations. Although the applicant has the burden of proof for his claims, and despite there being a two-party procedure the Court, when appropriate, has a duty to investigate. The Court may then conduct further investigations or give directions to the parties on what investigation is needed. The Migration Court of Appeal pointed out that in some cases, such as when the issue is to determine the credibility of a complex account, it may be appropriate for the court on its own initiative to summon an oral hearing.

The Migration Court of Appeal found that the applicant's account contained several contradictory and implausible statements, which meant that he could not be granted the benefit of the doubt. On the other hand, the Migration Court of Appeal pointed out, that the applicant's assertions seemed to be supported by a genuine document. The Migration Board had conducted two oral sessions with the applicant and submitted a detailed justification of its decision as to why they did not consider the applicant to be credible. The Migration Court had however not held a hearing nor taken any action on its own to investigate the alleged Egyptian sentence, by trying to clarify the applicant's identity or obtain further information from the Swedish Embassy on the matter of authenticity. Instead, the Migration Court ruled that they agreed with the Migration Board’s assessment without giving any further justification for its decision.

The Migration Court of Appeal noted, given that Egypt was well-known for massive violations of human rights and that the applicant's account has some support through a ruling by the Egyptian security court that could be true, that the Migration Court had not fulfilled its obligation to investigate. The need for a complete decision was additionally emphasised with the applicant’s claim that he might be subjected to torture.

Outcome: 

The Migration Appeal court withdrew the Migration Court decision and referred the case back to the Migration Court for renewed consideration.

Subsequent Proceedings : 

The Migration Court in Malmö rejected the application. A subsequent leave to appeal to the Migration Court of Appeal was not granted.