Sweden - Migration Court of Appeal, 1 June 2016, UM 3266-14

Country of Decision:
Country of Applicant:
Date of Decision:
01-06-2016
Citation:
MIG 2016:13
Court Name:
Migration Court of Appeal
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Sweden - Ch. 5 Cl. 3 Aliens Act (2005:716)
Sweden - Ch. 5 Cl. 3a Aliens Act (2005:716)
Sweden - Ch. 5 Cl. 8 Aliens Act (2005:716)
Printer-friendly versionPrinter-friendly version
Headnote: 

The Applicant and the Applicant’s children were applying for leave to remain in Sweden due to affiliation with their husband and father respectively who had permanent residency in Sweden. The Applicant and the Applicant’s children were all granted evidentiary relief regarding their identities. Further, one of the Applicant’s children, a 20 year old daughter, was deemed to fulfil the criteria for household community and special dependency. The Applicant and all of the Applicant’s children were granted leave to remain. 

Facts: 

The applicant (the “Applicant”) and the Applicant’s eight children, all Somalian citizens, applied in April 2010 for leave to remain due to affiliation to QAI, their husband and father respectively. QAI, also a Somalian citizen, had been granted permanent leave to remain due to a need for protection in September 2009.

The Swedish migration agency (the “Migration Agency”) rejected the applications, arguing that the Applicant and the Applicant’s children did not have passports and had not proven their identities. The Migration Agency’s decision was appealed to the administrative court in Malmö (the “Migration Court”) and the Migration Court referred the case back to the Migration Agency as it deemed that further investigations were needed in order to clarify if the Applicant and QAI were parents of the children.

After a re-examination of the case the Migration Agency once again rejected the Applicant’s and her children’s applications arguing that the Applicant had not proven her identity. The children’s applications were rejected on the grounds that the Applicant and QAI had not shown that they were authorised to appear for the children. The Migration Agency’s decision was appealed and the Migration Court rejected the appeal.

In February 2012 the Applicant and the Applicant’s children, this time together with a ninth child who had been born the same year, re-applied for leave to remain. DNA analysis showed that QAI and the Applicant were the parents to seven of the nine children with 99.9 percent certainty, but not to the other two. The Migration Agency rejected the Applicant’s and the Applicant’s children’s applications on the grounds that the Applicant had deliberately provided incorrect information about her family as only seven of the nine children were the Applicant’s biological children. The decision was appealed to the Migration Court and the appeal was rejected on the same grounds as used in the Migration Agency’s decision. Further, regarding the Applicant’s oldest daughter who, at the time of the application, had turned 18 years old, the Migration Court argued that she no longer belonged to the Applicant’s core family and therefore was not entitled to any evidentiary relief regarding her identity.

In May 2013 the Applicant and seven of the children (the “Children”) re-applied for leave to remain due to affiliation to QAI. The Migration Agency rejected the applications on the ground that the Applicant and QAI had, in different applications, provided inconsistent information regarding their family and that the information following the three different applications was not credible. The Children’s identities had on the same grounds not been made plausible. As for the adult daughter, her application was rejected as she had not proven her identity.

The Migration Agency’s decision was appealed to the Migration Court and the appeal was rejected on the grounds that it is important for the application of the rule of evidentiary relief that concurrent information is provided regarding, inter alia, family, housing, background and age. Since the Applicant and QAI, during previous applications, had provided incorrect information regarding their family, and had also provided inconsistent information regarding their housing situation in Somalia, the Migration Court were of the opinion that the information provided regarding the Applicant and the underage Children was not credible and their identities had not been made plausible. When it came to the adult Child’s application the Migration Court noted that the rule of evidentiary relief in certain circumstances can be applied for young adults. However, in light of the fact that the rule of evidentiary relief had been deemed not applicable to the other Children, the Migration Court were of the opinion that it could not be applied to the adult Child either. The Applicant’s and the Children’s applications were therefore rejected.

The Applicant and the Children appealed the Migration Court’s decision to the Migration Court of Appeal claiming that they should be granted leave of remain, arguing that:

1.          The Children’s relationship to the Applicant and QAI had been proven. Further the Applicant had made plausible that she and QAI had a serious relationship and that they were living together prior to QAI’s arrival in Sweden;

2.          Regarding the incorrect information provided in relation to the Applicant’s family, it was due to the Applicant’s cultural definition of family and not an attempt to circumvent Swedish asylum legislation. The Applicant stressed that the European Court of Human Rights had, in previous case law, established that the right to family reunion is of particular importance for persons with grounds for protection.

3.           In its earlier case law the Migration Court of Appeal had set a high standard for the level of inconsistency required to question the identity of an applicant who had proven their relationship through DNA-analysis. In the Applicant’s case the incorrect information included   information about whether the Applicant had lived with QAI’s parents in their native country, but that information had no direct relevance to the question of the Applicant’s and the Children’s identities.

4.           As for the adult Child, she was still to be considered as a child and a dependant family member. It would therefore be disproportionate to leave her without her family in Somalia.

The Migration Agency objected to the appeal, arguing that:

1.           The incorrect information provided previously regarding other, non-biological children and the Applicant’s family was material and should be considered in the examination of the current application.

2.           The incorrect information had been provided deliberately in order to circumvent Swedish asylum legislation. That the attempt did not succeed was only due to the DNA-analysis showing that two of the children included in the first application were not the Applicant’s biological children. Weighed together, the information regarding the Applicant’s and the under-aged Children’s identities could not be considered credible and they could not use the rule of evidentiary relief. As the identities of the Applicant and the under aged Children had not been proven they should be denied leave to remain.

3.           Given that the under aged Children cannot claim the rule regarding evidentiary relief it was also not applicable to the adult Child.

In the light of the above the Migration Agency claimed that the Applicant’s and the Children’s appeal should be rejected.

Decision & Reasoning: 

The administrative court of appeal in Stockholm (the “Migration Court of Appeal”) initially noted that QAI’s identity documentation showed he was married to the Applicant. Further, the relationship with the Children had been proven through DNA-analysis. That QAI and the Applicant had lived in a single household prior to QAI’s arrival to Sweden was not under dispute. The Applicant and the Children were therefore entitled to leave to remain provided that they could prove their identities.

It was noted that regarding the question of an applicant’s identity the Migration Court of Appeal has on numerous occasions found that an applicant for leave to remain due to affiliation must clarify its identity. Clarifying one’s identity is a high standard of proof meaning that the identity must be proven.

Due to the conditions in the applicant’s native country it could sometimes be difficult or impossible for the applicant to provide documentation showing the applicant’s identity. The Migration Court of Appeal’s case law has established a rule of evidentiary relief regarding identity, where an applicant can have a lower burden of proof regarding its identity, provided the applicant is a parent from a country with non-existent or poor governance apparatus who applies for leave to remain due to affiliation to the other parent. Under such circumstances the applicant only has to make its identity plausible. The application of evidential relief is subject to there being DNA-analysis evidencing that the applicant has children with the person of affiliation, and that the applicant and the person of affiliation lived in a single household before the person of affiliation arrived to Sweden. The same rule of evidentiary relief applies to the child of the applicant and the person affiliation, i.e. it is enough that the child make its identity plausible.

Given that the circumstances in Somalia were such that for a considerable time it had been difficult to have the authorities issue acceptable identity documentation, and that the Applicant and QAI had lived in household community in Somalia, it indicated that the Applicant and the Children had the right to claim evidentiary relief and therefore only had to make their identities plausible. The fact the Applicant and QAI had provided incorrect and inconsistent information, both regarding whether the Applicant and QAI had lived by themselves or together with QAI’s parents in Somalia and that the previous applications had included children who weren’t the Applicant’s and QAI’s biological children counted against the application of evidentiary relief. According to the Migration Court of Appeal the first fact didn’t have direct significance for the Applicant’s and the Children’s identities and could therefore be disregarded. The other fact, although it was material, was relevant to the previous applications and not the application now at hand. The Migration Court of Appeal found that although information provided during previous applications should be taken into consideration when assessing the credibility of the information provided in the current case, QAI’s interests in living together with the Applicant and the Children outweighed the public policy interest of controlling the entry and exit of the country by foreigners. The fact that QAI was living in Sweden due to his need for protection was a significant factor in the assessment.

Based on the information that had been revealed during the investigation the Migration Court of Appeal found that the Applicant had made her identity plausible and should be granted leave to remain. As for the under-aged Children, it was noted that they were unmarried and under-aged and due to their affiliation to QAI were entitled to leave to remain if they could prove their identities. The Migration Court of Appeal noted that the same circumstances applied to the under-aged Children as for the Applicant. As the under aged Children were deemed to have made their identities plausible they were granted leave to remain.

When it came to the adult Child, the Migration Court of Appeal initially noted that her mother and her siblings had been granted evidentiary relief regarding their identities. In the Migration Court of Appeal’s opinion the fact the adult Child’s parents and siblings had been granted leave to remain in Sweden and the same circumstance as for the Applicant applied to her, it were enough the she could make her identity plausible, which the Migration Court of Appeal found that she had.

The Migration Court of Appeal then had to assess whether the adult Child fulfilled the requirements of living in a single household and special dependency.

The Migration Court of Appeal noted that it was indisputable that the adult Child had lived in household community with QAI, the Applicant and the under-aged Children before QAI had moved to Sweden. Further, it was noted that the adult Child had spent the majority of her life in Somalia and the investigation had not revealed any information  indicating that she had started a family of her own or that she had other close relatives in Ethiopia, where the Applicant and the Children were living at the time of the application. As the Applicant and the under-aged Children had been granted leave to remain in Sweden, the adult Child would most likely be left alone in Ethiopia if she was not granted leave to remain. According to the Migration Court of Appeal the adult Child was, due to the circumstances, to be considered to be part of QAI and the Applicant’s family.

Finally, the Migration Court of Appeal had to assess whether it was proportionate to limit the adult Child’s relatives the right to family unity with the adult Child by denying her leave to remain. As QAI had a leave to remain in Sweden due to his need for protection there was no possibility for the family to exercise their right to family unity in Somalia. The investigation did not reveal any  information indicating that the family had a legal right to stay in Ethiopia or any other county. The only possible way for the family to exercise their right to family unity was if the adult Child was granted leave to remain.

In the light of the above the Migration Court of Appeal found that there existed a level of dependency between the adult Child, QAI and the Applicant, that the criteria of special dependency was fulfilled. The adult Child should therefore be granted leave to remain.

Outcome: 

The Applicant and the Children were granted permanent leave to remain.

Observations/Comments: 

This case summary was written by Linklaters LLP.

Case Law Cited: 

Sweden - MIG 2016:6

Sweden - MIG 2015:21

Sweden - MIG 2014:16

Sweden - MIG 2012:1

Sweden - MIG 2011:11

Sweden - MIG 2009:29

ECtHR - Gül v. Switzerland, Application no. 23218/94

ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87

ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996

ECtHR - Berisha v. Switzerland, Application no. 948/12

ECtHR - Tanda-Muzinga v. France, Application No 2260/10 (UP)

ECtHR - A.A. v United Kingdom, Application no. 8000/08

ECtHR - Nacic and others v Sweden, Application no. 16567/10