Sweden - Migration Court of Appeal, 19 June 2018, UM16509 - 17

Country of Decision:
Country of Applicant:
Date of Decision:
19-06-2018
Citation:
UM16509 - 17
Additional Citation:
MIG 2018:14
Court Name:
Migration Court of Appeal (Linder, Eriksson, Gullfeldt)
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Sweden - 4 kap. 1 § och 2 § utlänningslagen (2005:716)
Printer-friendly versionPrinter-friendly versionPDF version of SummaryPDF version of Summary
Headnote: 

The applicant appealed the Migration Court’s decision to dismiss his application for asylum on grounds of the availability of an internal protection alternative in the applicants home country of Afghanistan.

The Migration Court of Appeal granted the appeal as it was held that the question of internal protection can only be assessed after the court has made an individual assessment of the original grounds for protection invoked by the applicant.
 

Facts: 

The appellant, who is originally from a village in the Daikundi province in Afghanistan, moved to Iran as a fifteen year old following threats to his security by the village Mullah. He first applied for asylum in Sweden in 2015 on the grounds that the Mullah had imprisoned him, assaulted him and spread a false rumour that the appellant had destroyed a Quran. If the appellant would return to Afghanistan, he risks being killed by the Mullah, the Taliban or IS and he is therefore not safe in any part of the county.

In 2017 the Swedish Migration Agency rejected the appellant’s application for asylum on the grounds that although there was an individual threat posed by the Mullah to the appellant there was no reason to believe that the Mullah would search for the appellant outside the home village. Hence the Agency concluded that the appellant could not connect the threat to his security to the internal armed conflict in Mazar-e-Sharif, Heart and Kabul and he would therefore be able to seek internal protection in Afghanistan.

The appellant appealed the decision of the Migration Agency to the Court of Migration. The Court of Migration rejected the appeal as they considered that there were reasonable alternatives where the appellant could seek protection in Afghanistan and thus held that the appellant was not eligible for international protection. The court reached this decision without having considered the credibility of the appellant and the evidence presented by him regarding the threat to his security.


The appellant appealed  the decision to the Migration Court to the Migration Court of Appeal on the grounds that the Migration Court’s judgement on the availability for the appellant to seek internal protection within Afghanistan was erroneous. 

Decision & Reasoning: 

The Migration Court of Appeal held that the issue of the availability of internal protection is an integral part of the overall assessment of the individual asylum seeker’s necessity of protection. The question of whether or not internal protection is available is only pertinent once an assessment has been made regarding the asylum seeker’s necessity of protection from any part of the home country.

Hence, the procedure that the Agency - and Court of Migration should follow when assessing the necessity of individual protection is the following:
First, the credibility of the applicant’s stated identity,  citizenship or country of origin shall be assessed.
In this instance the agency/court can find that the applicant’s statement is in itself strong enough to fulfil the criteria for granting protection.  Alternatively, the applicant has made his or her statement credible by presenting evidence or by being judged as credible and thus being given the benefit of the doubt.

Once a necessity of protection has been established  the agency/court can consider the availability of internal protection in the applicants home country. In order for such an alternative to be considered it must be deemed as a relevant alternative. This requires the area to be a place where the applicant has access to effective protection and where it is reasonable that the applicant uses such an alternative. The burden of proof in establishing the availability of internal protection in the applicant’s home country lies with the Migration Agency.

Hence, as the Court of Migration did not follow the proper procedure as they failed to consider the credibility of the appellant and the evidence presented by him to the Court regarding the threat to his security, the appeal was granted. Furthermore, the Migration Court of Appeal held that the case shall be re-introduced to the Court of Migration for a new examination.
 

Outcome: 

Appeal Granted.

Subsequent Proceedings : 

Remitted to the Migration Court. 

Case Law Cited: 

Sweden - MIG 2007:9

Sweden - MIG 2007:12

Sweden - MIG 2007:33 II

Sweden - MIG 2009:4