Sweden - Migration Court of Appeal, 10 December 2010, UM 7706-10

Country of Decision:
Country of Applicant:
Date of Decision:
10-12-2010
Citation:
UM 7706-10
Court Name:
Migration Court of Appeal
Relevant Legislative Provisions:
National / Other Legislative Provisions:
ICCPR
ICCPR - Art 7
UNCAT
UNCAT - Art 3
UNCAT - Art 16
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 1 Section 9
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 2
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Headnote: 

A transfer to Greece within the framework of the Dublin Regulation was stopped due to the conditions for asylum seekers in the country.

Facts: 

The applicants (a mother and two children) applied for asylum in Sweden in Jan/Feb 2010. The family was found to have entered Greece illegally. The Migration Board decided to transfer the applicants to Greece according to the Dublin regulation (Dublin II) in May 2010. Greece did not protest. The decision was appealed to the Malmö Migration Court which on 31 August 2010 reversed the decision and remitted it to the Migration Board for the asylum applications to be examined. The Migration Court based its decision on the unacceptable conditions for asylum seekers in Greece and stated that Sweden should assume responsibility according to Art 3.2 of the Dublin II Regulation. The Migration Board appealed the decision to the Migration Court of Appeal in order to clarify applicable law. The Migration Court of Appeal stopped the execution of the transfer until its judgment had been delivered.    

Decision & Reasoning: 

The judgment begins with an account of the conditions for asylum seekers in Greece, including references to investigations by the Migration Board, international reports and pending cases in the ECJ and the ECtHR. The Migration Court of Appeal then stated, referring to its previous case law, that although it is important that the Dublin II Regulation is implemented, there are no formal obstacles against Sweden assuming responsibility for the examination of a particular application for asylum. What matters if there are reasons presented in the individual case for Sweden not to apply the Dublin II Regulation.

In its discussion of whether these conditions apply to this particular case, the Court referred to international law on non-refoulement as well as its own previous case law on Dublin II and Greece (MIG 2008:42). At the time of the decision in the aforementioned case, the Migration Court of Appeal did not find a transfer of an asylum seeker to Greece according to the Dublin regulation to be a violation of Art 3 of the ECHR.

At this point, however, the Court found that the conditions for asylum seekers in Greece had become unacceptable and that there was a real risk of their asylum applications not being examined according to the principles of rule of law. The Court therefore concluded that a transfer of asylum seekers to Greece at this time would constitute a violation both of Swedish law and of Art 3 of the ECHR. The Court concluded that even though the situation in Greece was mainly a question for the EU instead of national courts, and though there were cases pending on the matter in both the ECJ and the ECtHR, it would not be reasonable to put the examination of individual applications for asylum on hold until the matter had been settled in higher instances. Drawing on Art 3.2 of the Dublin regulation, the Court stated that Sweden should assume responsibility for these particular applications for asylum.

Outcome: 

Appeal denied.

Other sources cited: 

UN Office of the High Commissioner for Human Rights, UN Special Rapporteur on Torture presents preliminary findings on his Mission to Greece, 20 October 2010

M.S.S. v. Belgium and Greece  (Grand Chamber judgment pending at the time of decision) 

Case Law Cited: 

CJEU - C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and ME (UP)

Sweden - MIG 2007:8

Sweden - MIG 2008:42

Sweden - MIG 2010:18