Sweden - Migration Court of Appeal, 7 December 2015, UM 2929-15, MIG 2015:19

The applicant (the “Applicant”) and the Applicant’s son were granted temporary leave to remain and a work permit due to a connection with a person who was residing in Sweden between August 2010 and April 2012. In November 2013 the Applicant applied for a prolongation of the leave to remain and a work permit by claiming a connection with another person.

In October 2014 the Swedish Migration Agency (the “Migration Agency”) rejected the applications and decided that the Applicant and the Applicant’s son should be deported, reasoning that the applications had arrived too late to be considered as applications for prolongation of the leave to remain previously granted. According to Ch. 5 Cl. 18 of the Swedish Aliens Act (2005:716) (the “Aliens Act”) an Applicant must have leave to remain prior to arriving in Sweden and there was no reason to make an exception for the present case.

The Applicant appealed against the Migration Agency’s decision to the Administrative Court in Stockholm (the “Migration Court”) claiming primarily that a prolongation of the Applicant’s temporary leave to remain and a work permit should be granted or – alternatively – that the application should be referred back to the Migration Agency for trial of the Applicant’s claimed grounds for protection, because:

      (i)            in returning to his/her country of origin the Applicant risked persecution, imprisonment, or possibly death, due to a crime that the Applicant had not committed;

    (ii)            the Applicant’s need for protection emerged in 2010 when the Applicant became involved in a political party;

   (iii)            the Applicant had been informed that persons who had identified themselves as policemen had searched for the Applicant in the home of the Applicant’s daughter;

  (iv)            from the country of origin information it was clear that in Brazil persons were arrested without legal grounds, which to a far larger extent affected the Afro-Brazilian group of the population to which the Applicant belonged.

The Migration Agency stated that, with reference to the two instance principle of the asylum right, the Applicant’s application should be referred back to the Migration Agency for trial of the Applicant’s claimed grounds for protection.

The Migration Court left the claim for referring the application back to the Migration Agency without consideration and rejected the Applicant’s application reasoning that:

      (i)            for an application to be referred back to the Migration Agency, there had to be enough substance in the claimed grounds for protection to apply one of the grounds for protection in Ch. 4 Cl. 1, 2 or 2a of the Aliens Act;

    (ii)            the circumstances claimed by the Applicant did not fulfil any of the grounds for protection under Ch. 4 of the Aliens Act;

   (iii)            the Applicant’s application was, in the light of the above, manifestly unfounded and the claim for referring the application back to the Migration Agency should therefore be rejected.

Furthermore, the Migration Court agreed with the Migration Agency’s assessment that there were, in the present case, no grounds for granting leave to remain based on connection or any other grounds.

The Applicant appealed to the Administrative Court of Appeal in Stockholm (the “Court of Appeal”) claiming primarily that a prolongation of the Applicant’s temporary leave to remain and a work permit should be granted or – alternatively – that the application should be referred back to the Migration Agency for trial of the Applicant’s claimed grounds for protection, arguing that the handling in the Migration Court had been inadequate and that the Migration Court had done an incorrect assessment of the claimed circumstances, facts and evidence. Furthermore, it was in conflict with the Aliens Act to deport the Applicant without having the Migration Agency investigate and try the claimed grounds for asylum.