Sweden - Migration Court, 4 November 2010, UM 2675-10

Country of Decision:
Country of Applicant:
Date of Decision:
04-11-2010
Citation:
UM 2675-10
Court Name:
Migration Court (Malmö)
National / Other Legislative Provisions:
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 3
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 4
Sweden -Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 1(b)
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Headnote: 

The Migration Board accepted the applicant and her children were in need of international protection as refugees in relation to Senegal but claimed that they could obtain protection in Nigeria (considered a safe third country). The Migration Court upheld the applicant’s appeal stating that once a case has been examined in substance in relation to a country of origin and protection needs ascertained it is not possible subsequently to refuse protection by referring to a safe third country. Cases concerning safe third countries must be dismissed in accordance with Art 25.2(c) of the Asylum Procedures Directive which is transposed into Swedish law by the Aliens Act (2005:716) Chapter 5 Section 1 (b).

Facts: 

The applicant, a woman from Senegal, together with her two children sought asylum in different countries and were united in Sweden in accordance with the Dublin Regulations. The applicant was married to a Nigerian man. The applicant claimed asylum on the grounds that as a convert to Christianity she feared ill-treatment in Senegal from her Mothers’ traditional Muslim family. She also feared losing custody of her children. The applicant claimed that at worst the she and her children risked being killed by her mother's family. She also claimed that she and her children would be subjected to FGM and that they could not get protection from the authorities and that there was no safe internal protection.

She stated that she could not live in Nigeria as a single mother (her husband had disappeared). Furthermore, she did not know if she had the right to reside in Nigeria. She feared losing custody of her children in Nigeria. The applicant also put forward “particularly distressing circumstances” in support of the application.

The Migration Board agreed that the applicant and her children were in need of protection in relation to Senegal but claimed that they could obtain protection in Nigeria, which they considered a safe third country and therefore refused the application.

The applicant appealed to the Migration Court. On appeal the applicant added that she had learnt that her husband was already married before their marriage, a fact she had been previously unaware of due to language difficulties. She claimed that her marriage was void and that it was impossible for her to obtain Nigerian citizenship or residency in Nigeria, as she did not have the information and documents required for making the application.The applicant also argued that the Fula ethnic group to which she belongs is traditionally Muslim. Given that the applicant had converted to Christianity, she would not be accepted by the Fula in Nigeria. Conversely, no other Christians would accept her because the applicant was clearly a Fula. If sent to Nigeria, they risked being deported to Senegal.

The Migration Board challenged the appeal based on the following arguments: Nigeria is a safe third country. There was no support for the claim that the applicant and her children would be sent back to Senegal from Nigeria. If the question arose it was for the Migration Board to arrange the practical details for the applicant to obtain Nigerian citizenship or a residence permit. If an applicant had dual or multiple-citizenship and could obtain protection in any of the countries of citizenship, national protection had precedence over international protection. The principle was clear from the 1951 Refugee Convention and enshrined in Chapter 4 of the Aliens Act and point 3 of the Preamble to the Qualification Directive (2004/83/EC). Furthermore, the applicant had the possibility under the Nigerian Constitution to obtain citizenship because of her spouse's citizenship, and this possibility was real. She also had the opportunity to obtain a residence permit on the basis of family ties there.

Decision & Reasoning: 

The Migration Court noted that the parties agreed that the applicant and her children were in need of international protection as refugees in relation to Senegal and that they were entitled to refugee status and travel documents because of this.The Court had to decide whether to reject their applications and deport them to Nigeria on grounds of nationality or family ties.

On the first of January 2010, changes were made to the Swedish Aliens Act. The European Union directives, the Qualification Directive (2004/83/EC) and the Asylum Procedures Directive (2005/85/EC), were transposed into Swedish law. The new version of Chapter 5 section 1, published in SFS 2009:1542, was applicable in the case.

According to the first paragraph, refugees, persons in need of subsidiary protection and others in need of protection who are in Sweden are entitled to residence permits. According to Chapter 5 section l b, first paragraph point 3 of the Aliens Act, an asylum application can be dismissed if the applicant can be sent to a so-called safe third country. The rule has been modelled on the Asylum Procedures Directive, Art 25.2 c. It is clear from the preparatory statements that nothing in itself precludes a Member State from examining an asylum application in substance, even if there is a safe third country for the applicant. The reason for this is that the directive states that the safe third country provisions are optional.

The Court also noted that the corresponding provisions of the former wording of Chapter 5 section l of the Aliens Act was constructed so that a residence permit could be refused where the applicant could be sent to a safe third country.

The Migration Court agreed with the Migration Board that the Aliens Act provisions concerning refugees and others in need of protection in Chapter 4 were based on the principles of the 1951 Refugee Convention and the Qualification and Asylum Procedures Directives. Protection should primarily be given by the country one is a national of (See Art 1A2 Refugee Convention, cf. Art 106-107 Handbook).

The Migration Court noted initially that the applicant was not a citizen of Nigeria. Furthermore, the new version of January 2010 Chapter 5 section l of the Aliens Act stated that a residence permit cannot be refused due to the existence of a safe third country. Nor is there any other provision in the law that allows for this.

According to the Migration Court, this meant that once an examination of the substance of an application had taken place which resulted in a finding that the applicant was to be regarded as a refugee under Chapter 4 section l of the Aliens Act, and therefore eligible for residence permits in accordance with Chapter 5 section l first paragraph of the same Act, the application could not be refused on the grounds that there was a safe third country.

The Migration Board had not rejected the applicant and her children’s asylum applications pursuant to Chapter 5 section l b of the Aliens Act on the grounds that Nigeria was a safe third country. The Board had instead examined their application for asylum and judged them to be refugees with reference to Senegal. Deportation to that country is therefore not possible. With reference to the above grounds, there were thus no legal grounds for refusing a residence permit for the applicant on the basis that Nigeria was a safe country and that she had family links there. The applicant was therefore considered to be a refugee. With reference to the principle of family unity, and that this application concerns children, they are also assessed in the same way.

It was undisputed that the applicant and her children were in need of protection as refugees pursuant to Chapter 4 section l of the Aliens Act in relation to Senegal and that they were eligible for refugee status pursuant to Chapter 4 section 3 and travel documents pursuant to Chapter 4 section 4.

Outcome: 

The appeal was upheld and the applicants granted permanent residence according to Chapter 5 section l § first indent of the Aliens Act.

Other sources cited: 

Bill 2009/10:31 pages 216-218 on the transposition of the Qualification and Asylum Procedures Directives into Swedish law.