Sweden - Migration Court of Appeal, 15 June 2007, MIG 2007:33

Country of Decision:
Country of Applicant:
Date of Decision:
15-05-2007
Citation:
MIG 2007:33
Court Name:
Migration Court of Appeal
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Headnote: 

This case examines why asylum or protection grounds should be examined carefully before the issuing of a permit may be considered for ‘exceptionally distressing circumstances’ as expressed in Chapter 5 Section 6 of the Aliens Act. Once an applicant has been assessed as having a reasonably likely need for protection against a specific part of the country of origin, then the assessment of whether there is an internal flight alternative must be carried out within the framework of the provisions on protection.

Facts: 

The applicant sought asylum on 2 August 2005. He was a Yezid and Kurd from Iraq. He stated that he had never been politically active nor had any problems with the Iraqi authorities. The applicant claimed that he married his cousin, against the will of her father, and they fled to another part of Iraq. When his cousin's family discovered this his cousin was murdered by her brother as she had defied her family. The applicant fled to Sweden where he also feared that his life was in danger.

The Migration Board rejected the application. They pointed out that the applicant did not belong to any of the vulnerable groups in Iraq and that he could not be regarded as a refugee because his claim did not fall under any of the 1951 Refugee Convention grounds. The Migration Board also noted that the applicant submitted conflicting details concerning his relationship with his cousin and her death which he could not explain.

The Migration Board considered that the applicant had a social network in Iraq, that he had received help from his mother and uncle, that his problems could be resolved through mediation with his uncle and that he had access to the protection of the Iraqi authorities.

The applicant appealed the decision to the Migration Court arguing that he could not receive protection from the Iraqi authorities. He stated that he would be persecuted under Sharia law for abducing his cousin (even though she consented).  He further stated that he would become an outcast from his own family as they might otherwise be killed by his girlfriend's family. He claimed that he was wanted by the Iraqi authorities and that due to conditions in Iraq deportations could not be enforced.

The Migration Court considered the applicant credible, although he presented conflicting accounts to the Migration Board. The applicant submitted two documents from the Iraqi police, provided by his Uncle, detailing the kidnapping and killing of his girlfriend by her father. The Migration Court held there were insufficient grounds for concluding the documents were false.

The Migration Court did not consider that the applicant qualified for refugee or subsidiary protection status. However the Migration Court considered that there were sufficient grounds based on ‘exceptionally distressing circumstances’ to grant the applicant a residence permit as he had no realistic chance of moving to another part of northern Iraq, as his own family would shun him to avoid reprisals.

The Migration Board appealed to the Migration Court of Appeal, arguing that the applicant had provided conflicting information on essential elements of his claim and insisted that the documents submitted by the applicant were fraudulent. The Migration Board questioned the applicant’s claim that he would be shunned by his family, as this was argued for the first time before the Migration Court. The Migration Board argued that the applicant could settle in another part of northern Iraq.

Decision & Reasoning: 

The Migration Court of Appeal held a hearing in the case. The Court referred to the Government preparatory works of the Aliens Act which state asylum or protection claims should be examined carefully before a permit under the provision of ‘exceptionally distressing circumstances’ may be considered. The Court held that the assessment of whether the applicant was at risk in Iraq should be made within the framework of a protection assessment and not, as the Migration Court did, in the context of considering whether there were 'exceptionally distressing circumstances'.

The Court held that the applicant's account was not credible. The Court classified the two documents submitted by the applicant as material, but due to inconsistencies with dates their probative value was low. The Court noted that the applicant made contradictory statements and that he exaggerated his account at the hearing before the Migration Court.

The Court held that the applicant could not be regarded as a refugee or qualify for subsidiary protection. Furthermore, the Court considered that the facts were not of such an exceptional character to grant a residence permit for ‘exceptionally distressing circumstances’.

Outcome: 

The Migration Court upheld the appeal and confirmed the Migration Board's decision to expel the applicant.

Case Law Cited: 

Sweden - MIG 2007:12

Sweden - MIG 2007:15

Sweden - MIG 2007:9

Sweden - UM 1198-06