Problematic issues on immigration and asylum in swedish case law

 

INTRODUCTION

First of all I think it´s necessary to explain briefly how the Swedish courts deal with asylum and immigration cases. Since the 31st of March 2006 these cases are decided in court if appealed. Before that time they were decided in the Immigration Authority and if appealed in the Alien Appeals Board. Now the first level is still the Immigration Authority, the next level is one of three Administrative courts (Stockholm, Gothenburg or Malmö) with special divisions for Immigration cases (called the Immigration Court) and the third and last level is the Administrative Court of Appeal in Stockholm with a division called the Supreme Court of Immigration. In the last instance the applicant has to be granted a leave to appeal and that is only granted if it is a case of importance to create precedence (jurisprudence).

During slightly more than a year we have granted permission in about 100 cases and we have given judgements in about 50 cases so far. Many of the cases deal with the legal procedure, for example that one of the parties has not been properly informed, that an oral hearing has not taken place though it should have, the question of legal aid etc. In these cases if the court has failed to follow the legal procedure the judgement often is to send the case back to the Immigration Court for a new trial.

Since the purpose is to point out the most relevant and problematic issues concerning asylum and immigration in the domestic case-law it would be of interest to mention some of the areas in which we have given judgements during 2006 and 2007 so far.

FAMILY REUNIFICATION

An area in which we have frequently made judgements in the Supreme Court of Immigration is the question of family reunification (Council directive 2003/86/EC of 22 September 2003). One case (MIG 2007:19) dealt with the following questions.

A woman had applied to reunify with her husband who was living in Sweden. The question was if it was a pro forma marriage (fake marriage). The court stated that the woman had not entirely of free will entered to this marriage and that her husband was living together with another woman at the time of the marriage and also after the marriage. There was however no question about that they were legally married at the time of application. The burden of proof that it might be a pro forma marriage lies on the state. In this case the court found that it was not proved. However, the fact that the man had been living together with another woman before and after the marriage had not been told by him during the investigation and the court found that this was a lie of such importance that the woman did not have the right to reunify with the husband in Sweden. 

In another interesting case (MIG 2007:14) the following question arose.
Is the right for a child to reunify with it´s parents living in Sweden applicable for a person over 18 years but incapacitated in his home country. The court made a comparison with the Directive and found that this was not possible.
Another question that arises often is when a near relative applies to reunify with a relative living in Sweden. The rule is that he/she has to prove that they had a common household in the home country and that there was a special dependency between them in the home country. Some of the cases have dealt with the question whether the applicant has to go back to his home country to make the application (if he/she already is in Sweden).
In one case (UM 137-06 Judgement 070424) the question was if it is reasonable to claim that the applicant who was married to a Swedish woman should go back to his home country and make the application from there when the risk was that he had to do his military service for about 15 months when he returned. There was also a risk that he might be put in prison because he ran away from the military service. With reference to reports from the British Home Office the court found that he only risked prison for about 4-6 months. The court found that the above mentioned circumstances where not enough reason to make an assumption from the main rule. Some of the cases have dealt about the question whether the applicant and the near relative have had the special dependency between them (MIG 2007:1, Judgement 2007-04-19 Målnr 721-06) that is required.

DUBLIN REGULATION

The Dublin Convention in relation to Denmark has also been a matter for some cases. In one case (målnr 716-06, Judgement 2007-03-05) the question was if the fact that the woman was afraid to return to Denmark since her husband had assaulted her and her daughter was enough reason for Sweden to try her asylum application instead of Denmark where she first made her application. The answer to that question is no. In the Dublin Regulation no. 343/2003 Article 18(1) there is a time limit of two months for the “first” country to answer if they accept a request from e.g. Sweden to take over the responsibility of an application.

In another case (målnr UM 93-06, Judgement 070514) the situation was the following. Italy had not answered within the time limit and according to Article 18(7) and 25(1)(a) they are considered to have accepted. The time limit for transferring the applicant to Italy is six months and starts after these two months. The question was if this time limit for six months had passed. The court decided that this was not the case since the court had for the time being cancelled the lower courts decision within the time limit of six months.  

SUR PLACE CLAIMS

The questions about “sur place” reasons to stay have also been the subject of a judgement (MIG 2007:20). In this case the court pointed out the importance of secrecy about sensitive information in the judgement, but that at the same time it is necessary to fully describe the reasons for the decision.

The court pointed out that in a case like this it is important to keep the name of the applicant secret. Since that was not the case the court had to find out if that lead to sur place reasons to stay. Since political activities of that persons were well known in the home country even before the court delivered its judgement where his name was made public, it was not considered that he had sur place reasons to stay in Sweden.  

BENEFIT OF THE DOUBT, CREDIBILITY ASSESSMENT AND BURDEN OF PROOF

The rule of “benefit of the doubt” has come up in one case so far (MIG 2007:12, Judgement 070319 målnr UM 540-06). The general principle is that the refugee has the burden of proof for his/her need of protection. The court referred to the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees and made it clear that the burden of proof can not be put too high. Nevertheless his/her story has to be credible and likely. When the court forms the opinion about if the person is trustworthy or not, it normally pays attention to if the story is coherent and is not characterised by contradictory information. It is also important that the information is not in contradiction with commonly known facts about the country and that the story in its fundamental features has not changed in the different instances. The court drew up some lines in this case about in which order to consider the different questions. First the court has to form an opinion of if the applicant has made his/her identity and citizenship likely. Secondly it has to form an opinion about the claimed need of protection. That question is divided into two questions. The first question is if the circumstances that the refugee refers to are enough to constitute protection reasons and secondly if the refugee has made his/her story credible either by proof or by being considered credible and therefore gained the “benefit of the doubt” position.

The general principle is that an asylum seeker has a burden of proof for establishment of his/her identity and citizenship. However, there are some issues in connection to this which creates problems that we would like to mention and we expect that there are similar problems in most of the countries:

When the origin of the applicant has not been proved the Immigration Authority often orders a language analyst that until now has been anonymous (because of the threat that the analyst might feel from the person being analysed). None of the parties in court, nor the court itself knows what qualifications this language analyst has or the content of questions he/she may have put to the applicant in order to find out if he/she knows about the country concerned. Recently the Supreme Court of Immigration is going to decide if this is a proof of any value and if this procedure is consistent with the protection of the rights of the applicant.
If the citizenship of the applicant is known, he/she has to present the information about why he/she is a refugee. When it comes to personal causes he/she has to prove that and when it comes to information about the situation in the country both parties have to present their evidences. But also the court has a certain obligation to investigate. That can be a problem because it is unclear how much information the court itself can look for regarding international reports about that particular country.

REFUGEES FROM IRAQ

Another problematic issue that we would like to mention is the problem that Sweden faces about 150 refugees from Iraq every day. A study that was made by the Immigration Authority in Sweden says that Sweden alone has granted permissions for applicants from Iraq to stay in our country in 80 % of the cases while other countries have a much lower figure. This caused Sweden great practical problems to find places for these people to stay and these people have to stay in refugee camps for a much longer time than is intended.

Another problem in connection to this is that refugees - children - are coming alone to Sweden. The amount of these children increases constantly. These children also have to stay in the camps for a much longer time than is appropriate. Furthermore, it affects the time required for processing the application. For us in Sweden it seems rather strange that when applying the same international convention the results are so different between Sweden and the rest of the Europe.
Another problem is the increasing number of children who have been brought into the country as the biological children of an adult applicant who later turns out not to be the biological children of these persons. Many problems arise in connection to this issue. Sometimes the real parents turn up later or the children are not properly cared for.