Sweden - Migration Court of Appeal, 25 October 2012, UM287-10, MIG 2012:14

Country of Decision:
Country of Applicant:
Date of Decision:
25-10-2012
Citation:
UM287-10
Additional Citation:
MIG 2012:14
Court Name:
Migration Court of Appeal
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1F
International Law
International Law > 1951 Refugee Convention
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 12 > Art 12.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 12 > Art 12.3
UNHCR Handbook > Para 143
UNHCR Handbook > Para 186
UNHCR Handbook > Para 147
UNHCR Handbook > Para 149
UNHCR Handbook > Para 150
UNHCR Handbook > Para 151
UNHCR Handbook > Para 152
UNHCR Handbook > Para 153
UNHCR Handbook > Para 154
UNHCR Handbook > Para 155
UNHCR Handbook > Para 156
UNHCR Handbook > Para 157
UNHCR Handbook > Para 158
UNHCR Handbook > Para 159
UNHCR Handbook > Para 160
UNHCR Handbook > Para 161
UNHCR Handbook > Para 162
UNHCR Handbook > Para 163
UNHCR Handbook > Para 184
UNHCR Handbook > Para 185
UNHCR Handbook > Para 203
UNHCR Handbook > Para 204
National / Other Legislative Provisions:
Rome Statute of the ICC - Art 7.1
Rome Statute of the ICC - Art 7.2
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2(b)
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 3
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Headnote: 

An Iraqi man, previously a member of the Ba'ath Party, was granted refugee status. There were not found to be any grounds for exclusion. The man's son was also granted refugee status, with reference to the principle of family unity.

Facts: 

A and his son, B, both from Iraq, sought asylum in Sweden at the start of January 2008. They cited persecution on the grounds of political opinion, as A had been active in the Ba'ath Party in Iraq, where he was responsible for student organisations. A said that he had received death threats and that he was being sought. B said that he had been the victim of an attempted kidnapping.

The Swedish Migration Board decided in November 2008 to reject A's and B's applications for leave to remain and to deport them from Sweden. The decision to reject the application asserted, as one of the grounds, that the threats and kidnapping attempts cited certainly were serious but were not manifestly due to A's former work within the Ba'ath Party. Furthermore, it was noted that the threats they had received due to A's political activities were not sufficiently extensive to justify refugee status.

A and B appealed to the Migration Court against the decision by the Swedish Migration Board. Further evidence was submitted. The Swedish Migration Board contested the leave to appeal.

The Migration Court in Stockholm upheld the appeal. The Court said that the overall assessment of A's and B's account and the testimony and documentary evidence in the case indicated that A and B had demonstrated sufficiently that they had received threats of serious injury and had been subject to harassment, as they had described. There was therefore found to be substantial evidence that they were going to be subject to serious injury were they to be returned to Iraq. The country information and the written material submitted, according to the Court, supported the view that former supporters of the regime risked treatment that would qualify them for protection and that the situation in certain respects might be more serious than depicted in official reports. The Court furthermore said that A and B, based on their own accounts and the country information provided, had demonstrated sufficiently that the authorities could not provide them with adequate protection. A was viewed as having a well-founded fear of persecution due to political views as a consequence of his former activities. B was viewed as having a well-founded fear of having political views attributed to him. Both were considered refugees under Chapter 4(1) of theAliens Act.

The Migration Court then assessed possible grounds for exclusion from refugee status. The Court reiterated the established view that individuals who formed part of the former regime had committed serious abuses against members of the opposition, but noted that the standards of proof are high and that there are no general grounds for assuming that A was personally involved in activities that might constitute grounds for exclusion.

The Swedish Migration Board appealed against the judgment to the Migration Court of Appeal for the court to modify the judgment and uphold the Swedish Migration Board's original decision. In support of its appeal, the Swedish Migration Board said that there were particular grounds for presuming that A had incited or otherwise participated in the commission of crimes against humanity and acts that violate the United Nations' purposes and principles.

Decision & Reasoning: 

The Migration Court of Appeal first found it to be common ground that A fulfilled the criteria for being viewed as a refugee in accordance with Chapter 4(1) of the Aliens Act on the basis of his former position within the Iraqi Ba'ath Party. The Court made clear that the pertinent question it was to resolve was whether there were grounds for excluding A from refugee status, as the Swedish Migration Board was asserting.

The Court then summarised the relevant domestic, EU, and international rules concerning grounds for exclusion, the relevant questions of evidence, and the meaning of the term crime against humanity.

The Migration Court of Appeal found that there were grounds for concluding that the standard of proof 'particular reason to believe', contained in Chapter 4(2 b) of the Aliens Act, is consistent with the standard of proof set out in the UN Convention relating to the Status of Refugees and the EU Qualification Directive. The Court made clear that, for a standard of proof to be met, it is not necessary for the applicant to have been convicted of a crime, nor that the evidence correspond to what is required in a criminal case. On the other hand, continued the Court, the standard of proof should be set high enough to ensure that the overall purpose of the UN Convention relating to the Status of Refugees (and the corresponding provisions of EU and domestic law) is achieved, in other words to provide international protection to those who are subject to persecution. Recognition and testimony that can be considered reliable, for example, constitute sufficient evidence for grounds for exclusion to be found to exist.

The Migration Court of Appeal furthermore stated that the burden of proof for finding there to be grounds for exclusion rests with the state and that the rule concerning the benefit of doubt should be applied also when assessment of whether a person should be excluded from refugee status is being carried out.

The Migration Court of Appeal said that the assessment of whether, in this case, there has been a crime against humanity, as referred to in Chapter 4(2 b), first paragraph, (1) of the Aliens Act, should be made in the light of the most recently agreed definition of the crime, namely the definition contained in the Rome Statute. An assessment must also be made of whether the conditions prevailing in Iraq when A was working within the Ba'ath Party were of such a nature that a crime against humanity was being committed then and whether A, within the meaning of the Aliens Act, could be held personally responsible for having incited or otherwise participated in this crime.

With regard to the first question, the Migration Court of Appeal found that, in the light of the country information cited, it is clear that, under Saddam Hussein's rule, crimes were committed in Iraq that fall within the scope of Chapter 4(2 b), first paragraph, (1) of the Aliens Act.

With regard to the second question, the Court referred first of all to what the UNHCR's guidelines say about personal responsibility and then to the CJEU's judgments of 9 November 2010 in cases C-57/09 and C-101/09. The Migration Court of Appeal noted that the CJEU's statements about the necessity for a person to be prosecutable for crimes committed by an international organisation have a bearing on this case and the application of Article 12(2)(a), even though they concern Articles 12(2)(b) and (c) of the Qualification Directive.

The Migration Court of Appeal concluded that A, in the light of his seniority and many years of work within the Ba'ath Party, could be viewed as having good knowledge about the Ba'ath Party's criminal intentions and actions towards critics of the regime. These are circumstances that, according to the Court, could suggest that he had participated in the crimes against humanity committed in Iraq. These circumstances alone cannot, however, result automatically in exclusion from refugee status; rather, a more in-depth assessment of A's role must be performed. In connection with such an investigation, it was found that the investigation had revealed some of the information that A, as part of his role within the Ba'ath Party, had provided about dissidents during his time at university, about what happened when the information was provided, and about the purpose of his surveying activities. The Migration Court of Appeal found in summary that there were no grounds for concluding that individuals, due to the information provided by A, had suffered abuse of the type falling within the definition of crimes against humanity. According to the Migration Court of Appeal, there were no particular grounds for assuming that A, within the meaning of the Act, had incited or otherwise participated in the commission of crimes against humanity. The standard of proof set out in Chapter 4(2 b) of the Aliens Act was therefore not met. A was therefore not excluded from being viewed as a refugee.

The Migration Court of Appeal then assessed whether, as suggested by the Swedish Migration Board, there were grounds for exclusion on the basis of acts that breached the United Nations' purposes and principles. After a review of the relevant passages in the UNHCR Handbook, it was found that the Swedish Migration Board had cited the same circumstances that formed the basis for the Swedish Migration Board's view that A had participated in crimes against humanity. As no other circumstances were adduced, the Migration Court of Appeal took the view that there were no grounds either for excluding A from refugee status in accordance with Chapter 4(2 b), first paragraph and (3) of the Aliens Act.

Finally, the Migration Court of Appeal addressed the question of B's grounds for asylum. In this regard, the court found that B had not himself been politically active but had been persecuted due to his father and that, in accordance with the principle of family unity, as discussed in the UNHCR Handbook, he should be granted refugee status.

Outcome: 

The appeal was dismissed and the Migration Court's judgment was upheld with regard both to permanent leave to remain and the granting of refugee status.

Other sources cited: 

Prop. 1996/97:25, p. 96 et seq.; Prop. 2009/10:31, p. 105–109 and p. 261.

UNHCR Guidelines on International Protection: Application of the Exclusion Clauses: Article 1 F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, Points 2, 13, 18, 19, 34, and 35.

Case Law Cited: 

Sweden - MIG 2011:24

Sweden - MIG 2010:23

Sweden - MIG 2007:12