Sweden - Migration Court of Appeal, 26 November 2013, UM 1590-13, MIG 2013:19

Country of Decision:
Country of Applicant:
Date of Decision:
26-11-2013
Citation:
UM 1590-13
Additional Citation:
MIG 2013:19
Court Name:
Administrative Court of Appeal in Stockholm, Migration Court of Appeal
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A
International Law > 1951 Refugee Convention > Art 1D
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > EN - Treaty on the Functioning of the European Union 2010/C 83/01 - Art 288
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 12 > Art 12.1 (a)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 12 > Art 12.2 (c)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 24 > Art 24.1
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 24
National / Other Legislative Provisions:
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 1(a)
(c)
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 18 §20
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 18 §21
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 14 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 14 Section 3
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Headnote: 

A stateless Palestinian woman from Syria who was registered with the UNRWA but who was no longer receiving support from the organisation was granted refugee status by the Migration Court of Appeal, and the case was returned to the Swedish Migration Board for re-examination of the period of validity of the residence permit.

Facts: 

A, who is a stateless Palestinian from Syria, applied for asylum in March 2012. She cited individual grounds for protection, the general situation in Syria, and the fact that she had no home to return to. In June of the same year, she was granted temporary leave to remain for three years by the Swedish Migration Board and was granted subsidiary protection. The Swedish Migration Board found that she had not demonstrated credibly that she was a refugee but that, due to the situation prevailing in Syria, she was eligible for subsidiary protection and should be granted temporary leave to remain, like other Syrians in the same situation. A appealed and cited the same circumstances, saying that, as a registered UNRWA refugee who was outside the geographical scope of the organisation's activities due to the civil war in Syria and therefore was no longer able to receive its assistance, she was entitled to be granted refugee status under the 1951 Convention relating to the Status of Refugees ('the 1951 Refugee Convention') and permanent leave to remain. The mere fact that she is UNRWA-registered but is no longer receiving the organisation's support entitles her to refugee status. Article 1D of the 1951 Refugee Convention does not therefore apply. The Migration Court dismissed the appeal in accordance with the Swedish Migration Board's assessment and added that the UNRWA's support cannot be seen to have ceased if permanent leave to remain has not been granted. The Court thus found that her case still lay outside the scope of application of the 1951 Refugee Convention. The Appellant appealed against the judgment to the Migration Court of Appeal, which granted leave to appeal.

Decision & Reasoning: 

Before the Migration Court of Appeal's decision, A said that it was uncontested that there was an internal armed conflict in Syria and that Sweden, by ratifying the 1951 Refugee Convention, had undertaken to grant refugee status to all persons who had previously received protection or support from the UNRWA should such protection or support cease. The fact that this assistance has ceased, due to the civil war in Syria, must be obvious. The fact that she had been granted temporary leave to remain should not affect the assessment of whether support had or had not ceased. A also cited the judgment by the Court of Justice of the European Union from 2012 in Case C-364/11, El Kott and others, and concluded that this meant that if Palestinians who have availed themselves of concrete protection or support from the UNRWA cannot return to where the organisation is operating due to their safety being seriously threatened, such a person must automatically be granted refugee status. She added, at this point, that the ruling in question must reasonably be interpreted to apply regardless of whether the person is granted temporary or permanent leave to remain in a national procedure. The Swedish Migration Board changed its previous view and supported the appeal before the Migration Court of Appeal.

The Migration Court of Appeal first cited Article 1D of the 1951 Refugee Convention, Article 12(1)(a) of the EU Qualification Directive, Swedish case law to date, and the Court of Justice of the European Union's ruling in Case C-364/11, El Kott and others. It was made clear that, if a person is no longer covered by Article 1D of the 1951 Refugee Convention, he or she, under Article 12(1)(a) of the Qualification Directive (Directive 2004/83/EC), automatically enjoys the benefits conferred by the Directive. It was made clear also that, in relation to the cessation of the UNRWA's support, it had to be assessed whether the person affected was forced to leave the place where the organisation was operating due to a serious threat to personal safety and whether the organisation lacked the ability to guarantee the living conditions its duties demand. To conclude that granting temporary leave to remain means that protection from the UNRWA is still available is supported neither by the EU Qualification Directive nor by judgments of the Court of Justice of the European Union. The Migration Court of Appeal then concluded, in the light of the country of origin information about the internal armed conflict in Syria and A's personal situation, that her support from the UNRWA had to be deemed to have ceased when A left the country and that she did not have the option to return due to the prevailing security situation. A was therefore granted refugee status.

The Migration Court of Appeal then assessed the period of validity of the residence permit and whose duty it was to examine this question. After a review of the relevant provisions of the EU Qualification Directive and Swedish law, the Migration Court of Appeal concluded that Article 24(1) of the Qualification Directive should be interpreted to the effect that the length of a temporary residence permit previously granted had to be reviewed if a foreigner was granted refugee status. According to the Migration Court of Appeal, this should not apply just if refugee status is granted in accordance with an application from a foreigner who has previously been granted refugee status (in accordance with Chapter 4(3)(c), and Chapter 1(1)(a) of the Foreigners Act) but also, as is the case here, where a review takes place of the Swedish Migration Board's decision not to grant an asylum-seeker refugee status. The Court found, however, that Article 24(1) of the Qualification Directive did not contain any absolute requirement for a question concerning a residence permit to be reviewed in immediate connection with the granting of refugee status. In the light of this and the fact that, in Sweden, it is the Swedish Migration Board that is responsible for reviewing the periods of validity of residence permits in accordance with an application for refugee status to be granted for a foreigner previously granted leave to remain, the Migration Court of Appeal decided to leave it to the Swedish Migration Board to assess the period of validity of the residence permit.

Outcome: 

The appeal concerning refugee status was upheld. The Swedish Migration Board will assess the period of validity of the residence permit.

Other sources cited: 

Prop. 2009/10:31, p. 106, prop 10:31, p. 97 et seq., Swedish Migration Board, RCI 32/2011, RCI 1/2012, RCI 14/2013