Sweden: Migration Court of Appeal rules against exclusion of applicant from refugee status

Date: 
Monday, June 17, 2019

On 17 June, the Migration Court of Appeal in Sweden held that an asylum applicant found to be guilty of non-political crimes cannot be excluded from refugee status.

The applicant applied for asylum in September 2015 with her husband and children. She was granted a travel document and residence permit due to her connection to her children who were granted refugee status. The Migration Court held that while the applicant fulfilled the conditions to be recognised as a refugee due to persecution in Somalia, it considered that she should be excluded from protection status as there were reasons to assume she was guilty of facilitating others to perform genital mutilation on her three daughters, which it considered a serious non-political crime.

On appeal, the Migration Court of Appeal examined whether genital mutilation committed in the context of the instant case was a serious non-political crime under domestic law interpreted in light of EU law and the 1951 Geneva Convention.

The Court recalled that Sweden cannot apply the Geneva Convention in a way that deviates significantly from other countries and that it must be interpreted in line with the UNHCR Handbook for Procedures and Criteria for Determining Refugee Status and the UNHCR Guidelines on International Protection: Application of Exclusion Clauses. With reference to CJEU case law and the judicial analysis of EASO on exclusion, it held that the decision to exclude an individual from refugee status must be taken with consideration of the severity of the crime and circumstances of case.

While genital mutilation is not a crime in Yemen, where the acts were committed, the Court held that the procedure is criminalized in almost all European countries and in many countries in the rest of the world, and can therefore be considered to be internationally recognised as a crime. In assessing the severity of the crime, the Court examined, inter alia, the long-term consequences of the act and how it is prosecuted under Swedish law. It held that the punishment in Sweden for performing genital mutilation is two to six years imprisonment. However, the Court recognised that although genital mutilation can be prosecuted in Sweden, it held that such prosecution is only permitted in crimes with a connection to Sweden. Thus, the act in question, committed when the applicant and her daughters had no connection to Sweden, would not lead to prosecution in Sweden.

The Migration Court of Appeal held that the severity of the crime could not be considered to be “serious”, and thus found that the applicant should not be excluded from refugee status.

Based on an unofficial translation by the EWLU team.

 

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

 

Keywords: 
Exclusion from protection
Serious non-political crime