Sweden - Migration Court, 17 March 2011, UM 206-11
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
An unaccompanied minor from Mongolia was granted a residence permit on the gounds of “particularly distressing circumstances”. The Court held that the applicant would be in a very fragile and vulnerable position if returned as she was a minor without a family or a social network, she suffered from psychological problems and would be forced to live in an orphanage. The Court noted that child labour, child abuse and the sexual exploitation of children are problems in Mongolia and that it is a source and transit country for trafficking.
Facts:
The applicant sought asylum in Sweden alone on the 10th May 2010. The applicant grew up in Mongolia. Her biological mother died when the she was born. The applicant lived with her father and stepmother. They were physically violent towards her and forced her to start working at the age of five. About two years before the applicant left Mongolia her father and stepmother abandoned her without warning. They forced the applicant to live on the street. She had to look for food in rubbish bins to survive. The applicant was harassed regularly by other children in the area, both verbally and stones and bottles were thrown at her. The applicant did not seek help in Mongolia because she was not aware of any organisation or authority that she could turn to. The applicant stated that she travelled to Sweden with the help of her biological uncle who had found her.
Decision & reasoning:
The Migration Board rejected the application on the grounds that the applicant have provided insufficient reasons for her claim and that she lacked credibility. Neither the parents' mistreatment of the applicant, nor the fact that the applicant had to live on the street, or that she was harassed by other children, were considered sufficient reasons for the applicant to be considered in need of protection. With regard to forced labour, the Migration Board deemed that the applicant had the opportunity for redress from the domestic authorities. The Migration Board further questioned the applicant’s credibility regarding assistance from her uncle and found it unlikely that he would have found the applicant at a refuse dump without having known that she had been abandoned.
In assessing whether there were particularly distressing circumstances to grant the applicant a residence permit, the Migration Board stated that the applicant had not shown it likely she was an abandoned child because she had not shown that it was reasonably likely that she had no parents or other relatives left at home. The Migration Board stressed that there was an orphanage in Mongolia which accepted children up to the age of eighteen. The Migration Board did not consider that there were reasons to believe that the applicant would not have her basic material needs met on return.
The applicant also submitted a medical certificate stating that she had been diagnosed with mental trauma. The applicant suffered from insomnia, nightmares and had difficulty concentrating and found it very difficult to recollect experiences from her country of origin. The Migration Board did not consider that the diagnosis was sufficient for the application of the rule on particularly distressing circumstances.
The applicant appealed to the Migration Court.
On appeal to the Migration Court the applicant argued that she was in need of protection pursuant to Chapter 4. § 2 Aliens Act, because she had no social safety net and if returned would be forced to live a life on the street and be subjected to physical and mental harassment. The appeal further emphasised that it was not reasonable to require that a child should contact the police or seek assistance from organisations that did not exist in her own hometown.
The Migration Court believed that the applicant had provided a consistent account that gave an authentic impression and therefore considered her as credible. The Court agreed, however, with the Migration Board's assessment of the claimed contact with the uncle. Notwithstanding, the credibility of the remainder of the applicant’s account should not be questioned as a result.
The Migration Court, however, did not consider that the experiences of the applicant were sufficient for her to qualify for protection based on ill-treatment or punishment. The Court also considered based on country of origin data that the Mongolian authorities in general could protect their citizens from criminal acts. In addition the Court believed that the health certificate on the applicant’s mental trauma was not sufficient grounds to grant her a residence permit because of particularly distressing circumstances.
However the Court accepted that the applicant had no family or other relatives who could care for her in Mongolia and that she would on return be referred to an orphanage. The Court pointed out that child labour, child abuse and sexual exploitation of children are problems in Mongolia and that it is a source and transit country for trafficking.
Since the applicant was a teenage girl and had no network, suffered from psychological problems and if returned would be confined to an orphanage the Migration Court held that she would be in a very exposed and vulnerable position on return. Taking an overall view and bearing in mind the applicant’s previous experiences and taking into account the lack of places at orphanages that exists in Mongolia, the Court considered that there were particularly distressing circumstances and that the applicant should be granted a residence permit.
Outcome:
The Migration Court quashed the Migration Board's decision and granted a permanent residence permit on the grounds of particularly distressing circumstances.