Sweden - Migration Court of Appeal, 6 September 2010, UM 8098-09

Country of Decision:
Country of Applicant:
Date of Decision:
06-09-2010
Citation:
MIG 2010:18
Court Name:
Migration Court of Appeal / Migrationsöverdomstolen
National / Other Legislative Provisions:
ICCPR
ICCPR - Art 23
ICCPR - Art 23.1
UNCRC
UNCRC - Art 9
UNCRC - Art 9.1
UNCRC - Art 10
UNCRC - Art 10.1
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Headnote: 

The right to family life can outweigh the ‘state responsibility’ criteria in the Dublin II Regulation. The Court held that the application for asylum should be processed in Sweden, in order to secure the right to family and private life (Art 8 of the European Convention on Human Rights), despite the fact that another State was responsible under the Dublin II Regulation.

Facts: 

The applicant sought asylum in Sweden on the 14th September 2006, with his wife. A Eurodac ‘hit’ revealed that the applicant and his wife had previously applied for asylum in Germany. On the 8th February 2007, they were transferred to Germany under the Dublin II Regulation. The applicant's wife subsequently returned to Sweden, and applied for asylum together with the couple's son (born in 2007). On the 13th February 2008 the Migration Board decided that the applicant’s wife and son would be transferred once again to Germany. His wife and son absconded before transfer could be affected, and re-applied for asylum in Sweden once the time-limit for the transfer had expired. Their asylum applications therefore fell to be examined in Sweden. The applicant however, re-applied for asylum in Sweden several months after his wife and son and was determined to be eligible for transfer to Germany. According to the Board's view, Germany was the responsible state with regard to the examination of the applicant's application for asylum.

The applicant contested the Migration Board's decision on the basis that his case was interlinked with that of his wife and son, whose asylum claims would be examined in Sweden. He argued that family unity should be protected, in particular the son's need to be near his father.

Decision & Reasoning: 

The Migration Court of Appeal noted that the Migration Board's decision to transfer the applicant to Germany was made in accordance with the law, because the decision was reached in accordance with the Dublin II Regulation. However, it then went on to consider whether the decision could be said to be in accordance with Art 8 of the European Convention on Human Rights.

The Court noted that frequent and unjustified departures from the responsibility criteria under the Dublin II Regulation would cause confusion in the system and reduce predictability in its application. The latter would be detrimental not only to States, but also to the individuals concerned. The Court held that the interference with the applicant and his family's right to respect for family life which a transfer decision would have was a legitimate aim: namely preventing disorder within the meaning of Art 8(2) of the Convention. The question that remained to be answered was whether it was ‘necessary in a democratic society’ to make such an intrusion, i.e., whether it was proportionate.

By executing the transfer decision, the Swedish authorities would divest themselves of the opportunity to examine all the family members' applications in the context and light of each other. It cannot be excluded that the German and Swedish immigration authorities would come to different conclusions with regard to family members in need of international protection and that the family could be split up, at least temporarily. This indicated that Sweden should use the option in Article 3(2) and not apply the Dublin Regulation in relation to the applicant.

The Migration Board took account of the fact that the third country nationals had by their own actions, (including absconding), put themselves in a situation where their asylum applications might be considered by the authorities in different EU states. In addition, both the applicant and his wife had already been transferred to Germany together and had the opportunity for a comprehensive examination of their asylum claims there.

However, taking all matters into account, the Court considered that the interest in preventing disorder did not outweigh the interference with family life that the transfer would involve for the applicant and his family Members. In the circumstances, the Court found - despite the fact that the applicant and his wife, themselves contributed to the situation – that the appeal should be allowed. The applicant's asylum claim was deemed admissible under Art 3 (2) of the Dublin Regulation.
 

Outcome: 

Appeal upheld. The Court decided to refer the applicant’s case back to the Migration Board for processing within Sweden.