Sweden - Migration Court of Appeal, 19 December 2014, UM 5998-14, MIG 2014:29

Facts:

The applicant (the “Applicant”) applied to the Swedish Migration Board (the “Migration Board”) for residence, an employment permit and a right to asylum in Sweden (the “Application”) and was provided with legal aid, which included a lawyer or an assistant lawyer for the Applicant, funded by the Swedish government (“Legal Aid”).

The Application was handled by the Migration Board and it was known that the Applicant resided in Hungary with a valid visa prior to arriving in Sweden and submitting the Application. Accordingly, the Migration Board handled the Application pursuant to the Dublin III Regulation on Dublin Transfer matters (the “Transfer”).

On 19 June 2014, the Migration Board (i) dismissed the Application and transferred it to Hungary in accordance with the provisions in the Dublin III Regulation and (ii) rejected the request for Legal Aid. The Migration Board relied on a decision from the Migration Court of Appeal, MIG 2008:7, where the Migration Court of Appeal held that Chapter 18 Clause 1 of the Swedish Aliens Act does not allow for a Swedish domestic court to appoint Legal Aid to an Applicant in a Dublin Transfer matter.

The Applicant appealed to the Migration Court (the “Migration Court”), which, as a preliminary matter, found that the Dublin III Regulation was applicable in his case. Further, the Migration Court found that MIG 2008:7 applied to the Dublin II Regulation and not the Dublin III Regulation. The Migration Court noted that the Dublin III Regulation did not clarify whether the right to Legal Aid should be limited to the appellate level or if it can also be provided to an applicant at the Migration Board level. The Migration Court held that the right to Legal Aid should not be read restrictively and as a result found that the Applicant was entitled to Legal Aid at the Migration Board level.

Thereafter, the Migration Board appealed to the Migration Court of Appeal. The appeal was approved in order to examine the issue of whether an Applicant has a right to Legal Aid in an ongoing Dublin Transfer matter handled at the Migration Board level. 

Decision & reasoning:

Legal Aid under the Dublin III Regulation

As a preliminary matter, the Migration Court of Appeal noted that Chapter 18 Clause 1 the Swedish Aliens Act did not contain any provisions regarding Legal Aid in Dublin Transfer matters.

Under the Dublin III Regulation, the Member States are obliged to provide for Legal Aid on an appellant level of Dublin Transfer matters. As such, the Migration Court of Appeal found that Chapter 18 Clause 1 in conjunction with Chapter 1 Clause 9 the Swedish Aliens Act, two provisions regarding Legal Aid, should be applicable in Dublin Transfer matters on an appellant level.

In Swedish domestic cases, the possibility to provide Legal Aid in accordance with Chapter 18 Clause 1 of the Swedish Aliens Act is not limited to Applicants only at the appellate levels. An Applicant has a right to be provided with Legal Aid at the Migration Board level.

The Migration Court of Appeal found that the same reasoning should be applied in Dublin Transfer matters. As such, the Migration Court of Appeal held that in relation to Dublin Transfer matters, Legal Aid should be granted at the Migration Board level in exceptional cases, such as when there are indications that a Dublin Transfer should not be carried out pursuant to circumstances in the receiving Member State (e.g. M.S.S vs Belgium and Greece appl. No. 30696/09) or other reasons which would make it inappropriate to execute the transfer (e.g. MIG 2010:21). 

Outcome:

The Migration Court of Appeal overturned MIG 2008:7 making it possible, in exceptional cases (in accordance to Chapter 18 Clause 1 and Chapter 1 Clause 9 of the Swedish Aliens Act) to provide for Legal Aid in Dublin Transfer matters at the Migration Board level.

Observations/comments:

This case summary was written by Linklaters LLP.

The case summary was proof-read by Language Connect.