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

Country of Decision:
Country of Applicant:
Date of Decision:
07-12-2015
Citation:
Decision of 07.12.2015 – UM 2929-15
Additional Citation:
MIG 2015:19
Court Name:
Migration Court of Appeal
National / Other Legislative Provisions:
Sweden - Cl. 32 of the Administration Procedures Act (1971:291)
Sweden - Ch. 1 cl. 3 Aliens Act (2005:716)
Sweden - Ch. 1 cl. 12 Aliens Act (2005:716)
Sweden - Ch. 4 cl. 1 Aliens Act (2005:716)
Sweden - Ch. 4 cl. 2 Aliens Act (2005:716)
Sweden - Ch. 4 cl. 2a Aliens Act (2005:716)
Sweden - Ch. 5 cl. 18 Aliens Act (2005:716)
Sweden - Ch. 13 cl. 1 Aliens Act (2005:716)
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Headnote: 

In appealing against the Migration Agency’s and the Migration Court’s rejections of the Applicant’s application for leave to remain in Sweden, the Applicant claimed grounds for protection which he/she had not previously raised before the Migration Agency. Claiming grounds for protection meant that special requirements for asylum applications applied and the Applicant was entitled to a personal interview before the Migration Agency. The Migration Court of Appeal referred the Applicant’s case back to the Migration Agency as the Migration Court could not be the body to try the asylum application in the first instance.

Facts: 

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.

Decision & Reasoning: 

The Court of Appeal initially noted that the Asylum Procedures Directive (2005/85/EC) (the “Asylum Procedures Directive”) is applicable to all asylum applications made within the member state’s territory. From art. 2(e) and art. 4.1 of the Asylum Procedures Directive it follows that a decision regarding an asylum application should be made by a so called determining authority. Furthermore, an applicant should, in accordance with art. 12.1 of the Asylum Procedures Directive and as a main principle, be given the opportunity for its application to be heard in a personal interview. Exceptions from the requirement for a personal interview can, according to art. 12.2 of the Asylum Procedures Directive, only be made if a positive decision could be made based on the evidence at hand or if the application in certain qualified cases was to be considered as unfounded.

The Court of Appeal also noted that, according to art. 39.1 of the Asylum Procedures Directive, the member states are obliged to ensure that an applicant has the right to an effective remedy before a court for a decision made regarding the asylum application.

According to Ch. 1 cl. 12 the Aliens Act, an application for other grounds for protection under the Aliens Act should be handled as an asylum application. Furthermore, the Migration Agency is prevented from deciding on a deportation if the applicant has applied for asylum and the deportation decision has not been preceded by a personal interview with the Migration Agency.

In light of the above the Court of Appeal found that as the Applicant had claimed grounds for protection under the Aliens Act, the special requirements for asylum applications were applicable. The requirement of a personal interview meant that the Migration Court could not be the body to try such an application at first instance and the Applicant’s application should therefore be referred back to the Migration Agency.

Outcome: 

The Applicant’s application was referred back to the Migration Agency for a new hearing.

Observations/Comments: 

This case summary was written by Linklaters LLP.

The summary was proof read by Language Connect. 

Case Law Cited: 

Sweden - MIG 2009:34

Sweden - MIG 2007:4

Sweden - MIG 2007:31