Sweden - Migration Court of Appeal, 18 February 2011, UM 9899-09

Facts:

The applicant sought asylum in Sweden on the 2nd October 2008. In Russia she worked as a Judge until 2006 when she was sacked by her new boss. She then worked as a lawyer in a private office but felt that she was subjected to telephone-tapping; the police followed her and sought her in her home.  Her name was smeared in the media which affected her ability to pursue a successful career. In two submitted newspaper articles she was accused of taking bribes and deliberately handing down wrong decisions. The articles also mentioned that charges had been brought against her and that she is wanted in Russia. The purpose of the false charges was to alter the sentences she had handed down. She claimed that she risked unfair trial based on false allegations and witness statements, and thus could be sentenced to false imprisonment for up to 5 years. If sentenced to prison she feared that she would be more likely than others to be treated badly.

The Migration Board rejected the asylum application because they felt there was no clear causal link between the alleged incidents and threats related to prosecution. She had not shown it likely that there was a threat against her. The Migration Board pointed out that she could work as a lawyer without any major problems and this suggested that the authorities have little interest in prosecuting her.

She appealed this decision and her appeal was allowed by the Migration Court, which found that on the basis of her profession, she risked an unfair trial and an unjust prison sentence. The Court held that she could be exposed to protection-qualifying treatment on return and therefore granted her a residence permit under the subsidiary protection clause pursuant to Chapter 4.2 § first paragraph of the Aliens Act.

The Migration Board sought leave to appeal, which was granted. They maintained that the applicant’s information was vague and based on her own assumptions. They argued further that even if the claims were true they were not sufficient to permit granting protection. The Migration Board emphasised that she had the opportunity to pursue the matter to the highest court in Russia and then to the European Court of Human Rights if she believed that the trial was contrary to Art 6 of the ECHR.

The applicant argued in turn that she had already been abused and that there was an imminent and real risk that this would continue if she were deported to Russia. She pointed out that the European Court of Human Rights in several decisions held that Art 3 may apply in cases where the authorities are not engaged in a thorough and objective investigation and that prison conditions in Russia do not comply with Art 3.

After the Migration Court’s decision was handed down changes were made to the Aliens Act to incorporate provisions of the Qualification and Procedures Directives.

Decision & reasoning:

The Migration Appeal Court’s ruling focuses on two issues: Is a judge in a judicial system to be considered as belonging to a "particular social group" and is there good reason to assume that the applicant on return to Russia would be at risk of treatment amounting to persecution?

On the question of refugee status on grounds of membership of a particular social group, the Migration Court of Appeal found that a judge in the judicial system did not meet the definition of a "particular social group" within the terms stated in the Qualification Directive, Art 10(1)(d) as members of this group cannot be considered to have a common essential characteristic or a common background that cannot be changed. Judges can generally not be regarded as having such a common characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it. Moreover, judges cannot be regarded as a "particular social group" because others perceive them as a distinct group in society.

On the issue of alternative protection, the Court referred to the legal preparatory work for the amendments to the Aliens Act, with the new evidence requirement "reason to believe,” which is introduced to better harmonise with the Qualification Directive. The Appeal Court stated that this is a somewhat lower evidential threshold than in the earlier version of the Act.

The Migration Appeal Court considered that the two newspaper articles offered as evidence had low evidentiary value and found it was remarkable that the applicant had not taken any steps to obtain relevant information from the Russian authorities regarding the charges brought against her or the summons.  This information would have enhanced her ability to demonstrate her need for protection. The Migration Appeal Court took no position on whether criminal charges against the applicant were well founded or not but believed that she had not shown it likely that she would risk an unfair trial, or an unjust deprivation of liberty on return. The Court of Appeal did not consider that the conditions in Russian prisons in general were so bad that she would be at risk of being subjected to persecution. The fact that she had been forced to resign as a judge or that she was the subject of telephone-tapping or physical surveillance by the police cannot be considered to be persecution. Telephone tapping and physical reconnaissance are to be regarded as ordinary police methods in cases of suspected crimes.

Outcome:

The Appeal was dismissed. 

Other sources:

UNHCR Guidelines on International protection (7 May 2002) “Membership of a particular social group” within the context of Art 1A(2) of the 1951 Convention and (or) its 1967 Protocol relating to the Status of Refugees (node/367).