Sweden - Migration Court of Appeal, 9 October 2009, UM 1210-09

Country of Decision:
Country of Applicant:
Date of Decision:
09-10-2009
Citation:
UM 1210-09
Additional Citation:
MIG 2009:31(II)
Court Name:
Migration Court of Appeal
National / Other Legislative Provisions:
Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 5 Section 6
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Headnote: 

A young Christian man who had not been in his country of origin since childhood was not considered eligible for a residence permit based on exceptionally distressing circumstances in spite of the fact that his family resides in Sweden and that he is likely to face social difficulties on his return. 

Facts: 

The 26 year old applicant left Iraq in 1995 for Jordan at the age of 12. His immediate family all have permanent residence permits in Sweden. He himself has been in the country since 2006. He has no relatives in Iraq. The Migration Board denied his application for asylum on 25 January 2005, saying there were no grounds for a residence permit to be granted on the grounds of either asylum nor family reunification or humanitarian considerations. The Stockholm Migration Court however thought otherwise and granted the applicant a residence permit due to exceptionally distressing circumstances (Aliens Act Chapter 5 Section 6). This was based on a comprehensive evaluation of the fact that the applicant had spent all his grown life outside of his country of origin, that he belonged to a vulnerable religious minority and that his family all resided in Sweden.

The Migration Board appealed to the Migration Court of Appeal, claiming that the circumstances of the case were not sufficiently grave to justify a residence permit based on Chapter 5 Section 6.

Decision & Reasoning: 

In its judgment of October 9 2009 the Migration Court of Appeal initially concluded that it had not been shown in the case that the applicant had a need for international protection, nor that he could be awarded a residence permit on the grounds of family reunification. The Court also briefly, while referring to its previous case law, discussed the distinction between the need for protection and exceptionally distressing circumstances in the Aliens Act.  

In its assessment of the case the Migration Court of AppeaI discussed the interpretation of  ”exceptionally distressing circumstances” in the Aliens Act. The Court determined that in this situation an assessment of the applicant’s health should be made, his/her adaptation to Swedish society and the situation in the country of origin. The latter refers to situations that, without qualifying as grounds for protection, would mean that returning the applicant to the country of origin would be, taking all aspects into account, improper. The Court pointed out that there is not much guidance to be found in the traveaux préparatoires on this matter, but that examples could be social marginalisation and trauma due to past experiences. The general situation in a country also could play a role.

The Migration Court of Appeal emphasised that circumstances presented to support a need for international protection can (without themselves constituting sufficient grounds for protection) be regarded when assessing the risk for the applicant of being subjected to such difficult situations in the country of origin that “exceptionally distressing circumstances” are applicable. The Court was however explicit on the fact that the possibility of granting a residence permit on such grounds is very limited.

Finally, the Court concluded that even if it cannot be excluded that the applicant in this case will suffer social difficulties if returned to his country of origin, neither this, nor his personal circumstances as a whole, can be regarded as distressing enough to justify a residence permit based on Chapter 5 Section 6.

Outcome: 

The Migration Court of Appeal approved the appeal and revoked the judgment of the Migration Court.

Case Law Cited: 

Sweden - MIG 2007:15

Sweden - MIG 2007:43