Sweden - Migration Court of Appeal, 1 July 2016, UM 1859-16, MIG 2016:16

Printer-friendly versionPrinter-friendly version
Headnote: 

The Applicants applied for asylum in Sweden, stating that they had arrived from Syria. However, investigations showed that the Applicants had entered Hungary via Serbia and applied for asylum in Hungary prior to arriving to Sweden. The Migration Court of Appeal found that the Hungarian asylum procedure and reception conditions did not contain such substantial deficiencies, that it was impossible to transfer the Applicants to Hungary in accordance with the Dublin III Regulation. However, two of the Applicants were small children, and had the Applicants been transferred to Hungary there was an imminent risk of lengthy waiting periods and a long period in custody before the Applicants could have their applications examined, which would have a considerable negative effect on the children’s health and development. Therefore, according to the Migration Court of Appeal a transfer of the Applicants under the circumstances was not consistent with the principle of the best interests of the children. With rejection of the Migration Agency’s complaint, the Applicants’ asylum applications were to be examined in Sweden.

Facts: 

A family of two adults and two children (the “Applicants”) applied for asylum in Sweden on the 1 August 2015, stating that they had arrived from Syria. During the Swedish migration agency’s (the “Migration Agency”) investigation it was discovered that the Applicants had arrived in Hungary via Serbia and applied for asylum in Hungary on the 21 July 2015. The Migration Agency requested that Hungary should assume responsibility for the Applicants’ asylum applications. As there was no response to the request by relevant Hungarian authorities the request was deemed as accepted and the Migration Agency decided to transfer the Applicants to Hungary. The Applicants appealed the Migration Agency’s decision arguing that the Hungarian asylum procedure and reception conditions contained such systematic deficiencies that it was impossible to transfer the Applicants there.

The administrative court in Stockholm (the “Migration Court”) referred the Applicants’ case back to the Migration Agency for further investigation whether a state other than Hungary could be seen as the responsible state under the Dublin III Regulation or if the Applicants’ asylum applications should be examined in Sweden, arguing that the Hungarian asylum procedure and reception conditions contained systematic deficiencies. According to the Migration Court the deficiencies constituted substantial and clear reasons to assume that an applicant who was transferred to Hungary would run a real risk of suffering inhuman or degrading treatment. The accelerated asylum process used in Hungary entailed a substantial risk that an applicant who was transferred to Hungary would subsequently be transferred to Serbia, and thereafter transferred to countries such as Macedonia and Greece. According to the Migration Court’s assessment the deficiencies in those countries’ asylum procedures were so severe that an applicant generally would not receive an acceptable examination of their need of protection and therefore risked being transferred to countries where the applicant’s rights under the ECHR would not be upheld.

The Migration Agency appealed the Migration Court’s decision arguing that:

1. Hungary made a number of changes to its legislation during 2015 in order to bring it in line with the Asylum Procedures Directive. Further, there were no reports from UNHCR showing that Hungary was in breach of the international asylum regulation;

2. Hungary had reported its list of safe third countries (including Serbia) to the Commission and is using an agreement entered into between the EU and Syria. Further, Serbia has asylum legislation and should therefore be able to qualify as a safe third country; and

3. Neither UNHCR, the European Court of Justice or the European Court of Human Rights, have warned against transfers to Hungary and it is not correct to hinder Dublin Transfers without concrete information from the institutions that are responsible for monitoring the asylum system.

The Applicants claimed that the appeal should be dismissed, arguing that:

1. According to a number of initiated and independent observers, there were, even after 2015 legislative amendments, deficiencies in Hungary’s asylum procedure, e.g. regarding examination of the asylum reasons, lack of legal assistance and interpreters and lack of opportunities for appeal;

2.  There were obvious risks that the Applicants would be sent to Serbia and although Serbia formally fulfilled the requirement for a safe third country, the available country information showed that this was not actually the case;

3. Even if it was possible to appeal a decision of transfer from Hungary, it was impossible in practice to prevent the execution of such a decision. In addition to the lack of oral proceedings or legal assistance, it was also impossible for an applicant to show that Serbia was not safe due to the circumstances in the applicant’s particular case as the deficiencies in the Serbian asylum system leaves the applicant without access to international protection.

Decision & Reasoning: 

The administrative court of appeal in Stockholm (the “Court of Appeal”) noted that it first had to decide whether there were well founded reasons to assume that there were systematic deficiencies in Hungary’s asylum procedure and reception conditions, which meant that the Applicants could not be transferred to Hungary. Were such deficiencies found not to exist then the Migration Court of Appeal had to decide whether there were other reasons to not transfer the Applicants to Hungary and instead examine the asylum application in Sweden.

Systematic deficiencies in Hungary’s asylum procedure and reception conditions

Regarding the question of the alleged deficiencies in Hungary’s asylum procedure and reception conditions the Migration Court of Appeal noted the following:

1. Available statistics for the frequency of  approved and denied cases from the Hungarian immigration authority did not support the notion that there were such severe deficiencies in Hungary that it would not be possible to transfer applicants there;

2. The fact the Hungary had been reported to have built fences around its borders and used so called transit zones was, according to the Migration Court of Appeal, problematic however, there were no reasons to believe that asylum applicants transferred under the Dublin III Regulation would be placed in such transit zones;

3. The fact that Hungary used certain forms of accelerated procedures was not against the Asylum Procedures Directive;

4. According to available country information it was clear that although there was a lack of available legal assistance and interpreters, there were volunteer organisations offering assistance in that regard.

Altogether, the Migration Court of Appeal found that the deficiencies that has been found were not of such severity that the Applicants would risk inhuman or degrading treatment if transferred to Hungary.

Regarding the question of Hungary’s use of the principle of safe third country, the Migration Court of Appeal noted that there was a readmission agreement between Serbia and the EU which allowed people without residence documents to be readmitted to Serbia. Further, there were no restrictions under the Dublin III Regulation preventing the referral of an applicant back to a safe third country. The Migration Court of Appeal also noted that although UNHCR’s report from May 2016 showed certain issues with the Hungarian authorities’ process, it was possible for asylum applicants to appeal decisions and have them annulled by Hungarian courts.

According to the Migration Court of Appeal, Hungary’s use of Serbia as a safe third country could not be considered to constitute such a severe deficiency that the Applicants could not be transferred to Hungary.

Regarding the issues relating to the fact that Hungary kept asylum applicants in custody, that the custody periods could be long and that there was a lack of a right to an effective remedy, the Migration Court of Appeal noted that although these facts could be criticised they did not entail that an asylum applicant would be subject to inhuman or degrading treatment.

Conclusively, the Migration Court of Appeal found that based on the information that had been presented there was no reason to assume that Hungary’s asylum procedure and reception conditions contained such systematic deficiencies that it was impossible to transfer the Applicants to Hungary.

Other reasons

As the Migration Court of Appeal found that there were no systematic deficiencies in Hungary’s asylum procedure and reception conditions, it had to decide if there were other reasons to allow the Applicants to have their applications examined in Sweden.

The Migration Court of Appeal initially noted that a member state, in accordance with the Dublin III Regulation, is entitled to make a discretionary assessment and decide to examine an asylum application even though the member state is not obliged to. Further, the Migration Court of Appeal noted that in order not to counteract the purpose of the Dublin III Regulation, such an exception from the provisions regarding responsible member states should only be made if there are special reasons.

As two of the Applicants were small children the Migration Court of Appeal was of the opinion that the question of children’s special rights had to be taken into consideration. Both CFRU and the preamble to the Dublin III Regulation states  that the best interest of the child should be the primary consideration.

Based on the investigation in the current case it was evidenced that Hungary considered Serbia to be a safe third country and the Migration Court of Appeal considered it plausible that Hungarian authorities would therefore refer the Applicants back to Serbia. From UNHCR’s reports it had been shown that there were lengthy waiting times for transfer from Hungary to Serbia and a considerable number of the applicants were in custody awaiting execution of such a transfer. According to the Migration Court of Appeal, in light of what had been found during the investigation of the case, it was uncertain where and when the Applicants would have their reasons for protection examined and the Applicants risked being placed in custody for a significant period of time, which would have a substantial negative effect on the children’s health and development.

According to the Migration Court of Appeal’s assessment a transfer of the Applicants would not be consistent with the principle of the best interests of the children. The Migration Court of Appeal therefore decided that the Applicants could not be transferred to Hungary and their asylum applications should be examined in Sweden.

Outcome: 

The Migration Agency’s appeal was dismissed and the appealed decision was changed so that the Applicants’ asylum applications would be examined in Sweden.

Observations/Comments: 

One of the judges was of a dissenting opinion and thought that the Migration Agency’s appeal should be approved, arguing that the Dublin III Regulation is the common regulation for examining asylum applications. Since the adoption of article 3.2 in the Dublin III Regulation, the scope for interpretation of other international undertakings in order to find that Sweden should assume responsibility for an applicant’s application rather than the responsible member state is very limited. Put against the purpose of the Dublin III Regulation i.e. the need for objective criteria and swift access to asylum procedures, consideration of the best interests of the children could not entail that the Dublin III Regulation should not be applied in the Applicants’ case.  

This case summary was written by Linklaters LLP.

Case Law Cited: 

Sweden - MIG 2008:42

Sweden - MIG 2007:8

Sweden - MIG 2010:21

Sweden - MIG 2013:23

Sweden - MIG 2014:24

CJEU - C-63/15 Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie