Sweden - Migration Court of Appeal, 28 August 2013, UM 9565-11, MIG 2013:15

Country of Decision:
Country of Applicant:
Date of Decision:
28-08-2013
Citation:
UM 9565-11
Additional Citation:
MIG 2013:15
Court Name:
Administrative Court of Appeal in Stockholm, Migration Court of Appeal
National / Other Legislative Provisions:
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 1
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 4
Sweden - Utlänningsförordningen ( Statutory Instrument on Foreigners) (2006:97) - Chapter 2 Section 7
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Headnote: 

A man from Cameroon whom the UNHCR considered a refugee and granted permanent leave to remain in Sweden as a quota refugee was refused his application for refugee status and travel documents.

Facts: 

A, who is from Cameroon, was granted refugee status by the UNHCR as he risked persecution in his country of origin. Sweden, in June 2008, approved the UNHCR's request to accept him as a quota refugee and thus granted him leave to remain as a quota refugee. In May 2009, A applied for travel documents. The Swedish Migration Board rejected his application in June 2011 on the grounds that he did not fulfil the criteria for refugee status. A appealed against the decision to the Migration Court, saying that he had been granted programme refugee status by the UNHCR and that he was therefore entitled to receive travel documents. The Migration Court dismissed the appeal in October 2011. A appealed to the Migration Court of Appeal, which granted leave to appeal. In his appeal, A said that states must respect the UNHCR's assessments about refugee status, which was made clear by the Court of Justice of the European Union, amongst other institutions, and that he still risked persecution in Cameroon due to his political activity with the Social Democratic Front (SDF). The Swedish Migration Board contested leave to appeal, saying that Sweden was not obliged under international law to approve UNHCR refugee status assessments but that Sweden, as a sovereign state, was entitled to control the stay of foreigners within its own territory and was thus free to perform its own assessment of a person's status based on Swedish law and taking into account the threat at the time of the decision. With regard to the latter assessment, the Swedish Migration Board maintained that A no longer had a well-founded fear of persecution on the grounds of his political activities, citing the fact that a long time had passed since the time of his activities, his activities were at a relatively low level, and the available country of origin information did not suggest that members of the SDF were regularly persecuted, within the meaning of the Convention relating to the Status of Refugees and the Foreigners Act.

Decision & Reasoning: 

Firstly, the Migration Court of Appeal obtained a statement from the UNHCR, in which it was confirmed that A had been declared a refugee by the UNHCR in relation to Cameroon. Furthermore, it indicated that a state certainly is not bound by a prior assessment of refugee status by the UNHCR but that the UNHCR's assessment should be accorded substantial weight and that the decision-maker in the individual country must take this into account when assessing the risks and establishing credibility. Furthermore, the UNHCR pointed out to the Court the fact that the European Court of Human Rights has taken the view that the UNHCR's recognition of a person's refugee status should be given 'due weight' (see Abdolkhani and Karimnia v. Turkey, judgment of 22 September 2009, Application No. 30471/08, paragraph 82) and that EU Member States assess the UNHCR's recognitions differently but that the UNHCR's assessment is generally found to be very significant. In Bulgaria and France, it is furthermore enshrined in law that a foreigner recognised as a refugee by the UNHCR must be granted refugee status. In the Netherlands, the law provides protection against repatriation for persons whom the UNHCR's Representation in the country declares to be refugees.

The Migration Court of Appeal then performed its own assessment of the circumstances in the case. Firstly, the Court summarised the domestic and international legal provisions concerning refugee status. Then, the Migration Court of Appeal concluded that a state is not bound by an assessment of refugee status previously performed by the UNHCR but that Sweden should take into account the UNHCR's assessments and statements when determining whether a person is eligible for refugee status. It was indicated that the risk assessment that must be carried out is prospective and that it is the circumstances prevailing at the time of the assessment that are of decisive significance.

The Migration Court of Appeal then set out what had emerged concerning A's experiences of Cameroon. It was noted that he had been a member of the opposition party, the SDF, that he had been detained on several occasions due to his political activities, denied a poll card, released from detention after paying a bribe, managed to escape when his residence was attacked, arrested, prosecuted, and sentenced, following accusations of being a rebel, and then, in August 2003, the subject of attempted murder and detention, following which he was in hiding until he left the country in 2005. The Court then concluded that the country of origin information in the case indicated that SDF members were subject to arbitrary arrest but that it was mainly leading opponents of the government who were at risk of being subject to such treatment as would entitle them to protection under the Convention relating to the Status of Refugees.

The Migration Court of Appeal found that the UNHCR's assessment that A is a refugee must be weighed up against the fact that eight years have now elapsed since he left Cameroon and that it has also been a long time since he was politically active. Furthermore, the level of his political activity and what is now known about the position of political activists in his home country must be taken into account.

In its overall assessment, the Migration Court of Appeal found that a well-founded fear of persecution could not be considered to exist and that A could not therefore be viewed as a refugee or granted travel documents. The appeal was dismissed.

Outcome: 

The appeal was dismissed.

Other sources cited: 

Prop. 2009/10:31, p. 259

Foreigners Board – precedent-setting decision, UN 441-03

Case Law Cited: 

Sweden - MIG 2008:12

ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08

Sweden - MIG 2006:1

Sweden - MIG 2007:37