Sweden - Migration Court, 3 January 2014, UM 9908-13

Facts:

A sought asylum in Sweden in July 2013. He said that he was born on 15 July 1998, i.e. that he was 15. When his fingerprints were compared with those found in Eurodac, the Swedish Migration Board discovered that A had entered Italy illegally but not sought asylum there. In Italy, he had registered as having being born on 5 May 1995. On the basis of the age analyses the Swedish Migration Board performed and the registered information the Italian authorities provided, the Swedish Migration Board found that A's legal date of birth should be considered to be 4 October 1995. As A would be viewed as an adult, the Swedish Migration Board requested that Italy assume responsibility for examining his asylum application. The Italian authorities accepted this, and the Swedish Migration Board, on 21 November 2013, ordered A to be transferred to Italy under Article 19 of the Dublin Regulation, as there were no grounds under Article 3(2) of the Dublin Regulation not to apply the Regulation.

A appealed to the Migration Court in Stockholm against the Swedish Migration Board's decision.

Decision & reasoning:

The Migration Court overturned the Swedish Migration Board's decision and returned the case for further examination. The grounds for this decision are summarised below.

Article 5(2) of the Dublin Regulation stipulates that the Member State responsible for examining an asylum application is determined based on the criteria contained in the Regulation, given the situation prevailing when the asylum seeker first submits an application in a Member State.

When A sought asylum in Sweden, on 15 July 2013, he was 17, in the view of the Swedish Migration Board, although he said he was 15. Regardless of the assessment of whether he was born in July 1998 or October 1995, he was a minor on 15 July 2013 when he submitted his application for asylum in Sweden. The Court thus found that A was to be viewed as a minor in relation to the assessment of whether or not the Dublin Regulation was to be applied.

If the asylum seeker is a minor without an accompanying adult, the responsibility for examining the asylum application under Article 6 of the Dublin Regulation lies with the Member State in which a member of the Applicant's family is residing lawfully, provided that this is in the best interests of the minor. The second paragraph of the same article states that, in the absence of a family member, the Member State responsible for examining the application is the Member State where the minor has submitted his or her application for asylum.

Article 6(2) must be interpreted to mean that the responsible Member State is the Member State where the minor is residing after having submitted an asylum application in that Member State (see the judgment by the Court of Justice of the European Union of 6 June 2013 in Case C-648/11).

A is residing in Sweden and has submitted an application for asylum in Sweden. Under Article 6(2) of the Dublin Regulation, therefore, as interpreted by the Court of Justice of the European Union, Sweden is the Member State responsible for assessing A's asylum application.

Outcome:

The Migration Court overturned the Swedish Migration Board's decision and returned the case to the Swedish Migration Board for further examination.

Subsequent proceedings:

The Swedish Migration Board performed the further assessment of the case. The outcome is unknown.

Observations/comments:

It should be noted that this is a decision not by the Migration Court of Appeal but by the Migration Court in Stockholm. The Swedish Migration Board, in its appeal to the Migration Court of Appeal, referred to the judgment by the Court of Justice of the European Union of 10 December 2013 in Case C-394/12. The Migration Court of Appeal has not yet granted leave to appeal.

Other sources:

Prop. 2009/10:31— transposition of the Qualification Directive and the Asylum Procedures Directive