Sweden – Migration Court, 16 May 2011, UM 27323-10

Facts:

The applicant was a Christian and came from Mosul in Iraq. In support of his application for asylum, he stated that in 2007 he had received three threatening letters, two to his workplace and one to his home, from Al-Jihad al-Islam. He added that his family's house was blown up when his son was there in April 2010 to repair the house before the family intended attempting to return from Syria to Iraq.

Decision & reasoning:

The Migration Board rejected the application but decided in June 2010, after the applicant’s deportation order was finalised, to make a new assessment of the case in accordance with Chapter 12. § 19 Aliens Act because of the deteriorating security situation for Christians in Mosul.

The Migration Board rejected this new application. The applicant appealed to the Migration Court and argued for the case to be referred back to the Migration Board because the decision was taken by case officers who had not been present at the inquiry, which the applicant did not find acceptable when the investigation was only recorded in summary and not transcribed word for word.

The applicant stressed that recent events excluded an internal protection alternative in Baghdad and that Kurdish-controlled provinces in northern Iraq (KRG) were not an alternative. The applicant’s wife and children were granted temporary residence permits in Sweden in March 2011, as the applicant’s wife had obtained work. It could not be expected that the applicant would return alone to the KRG because he had a family.  The applicant could not speak Kurdish and therefore lacked the means to support himself and his family. Furthermore, it was difficult to move to the KRG and many requirements had to be met. The applicant claimed there was a requirement to obtain a sponsor.

The Migration Board agreed in the oral hearing that the security situation for Christians in Baghdad had deteriorated so that it was no longer an appropriate option for the internally displaced. The Migration Board considered country of origin information and the fact that the applicant had a vocational education, and concluded that it would therefore be reasonable and relevant to refer the applicant to an internal protection alternative. The fact that the children did not speak Kurdish and the family did not have housing and that the applicant did not have a job in the KRG were not considered relevant. The Migration Board also stated that it saw no reason to make a different assessment for a family than for a single man as long as there was a head of household. According to the Board, it was also common knowledge that a sponsor was no longer required to enter the KRG.

The Migration Court found that there was no reason to refer the matter to the Migration Board. In a review of the issue of a residence permit under Chapter 12. § 19 Aliens Act, it is mainly the new conditions that led to the decision to grant a new assessment that were to be considered. However the protection grounds that the applicant relied on earlier in the process, as well as the applicant's ties to Sweden and the reasons of a humanitarian nature would be considered. There was, however, no legal basis to consider the issue of whether the applicant could be granted a residence permit because of links to his wife.

Furthermore, the Migration Court noted that the general security situation in Iraq was not such that it constituted in itself sufficient grounds for a residence permit to be granted, but an individual assessment of protection grounds had to be made. Since Christians were a particularly vulnerable minority group in Iraq they were not required to present strong individual grounds.

The Migration Court found that the applicant’s account was coherent and reasonable and was consistent with available country of origin information. The Court therefore saw no reason to doubt the applicant’s credibility. The security situation for Christians in Mosul had further deteriorated since the applicant had left Iraq and there was increased danger for Christians in Mosul city. In light of these serious security risks and individual threats the Migration Court found it reasonably likely that the applicant had a well-founded fear on return to Mosul of being persecuted because of his religious affiliation and that the Iraqi authorities could not provide him with effective protection.

The Migration Court then examined if there was an internal protection alternative for the applicant. This assessment should consider whether an internal protection alternative was relevant and reasonable. Relevant meant, according to the Migration Court that the current location was accessible to the individual in a practical, safe and legal manner. The individual must also have access to effective protection at the location. That option should be reasonable meant that an individual assessment of the individual's ability to settle in new city should be made, and whether he or she had a social network. There ought also to be a realistic possibility for the individual to support himself and be able to live in a way that did not involve unnecessary suffering or hardship.

The Migration Court pointed out that the Qualification Directive had no definition of what constituted an individual's personal circumstances. Instead, the Court sought guidance from UNHCR's guidelines on internal displacement, which states that personal circumstances should always be given adequate attention and that this assessment should be based on factors such as age, gender, health, family situation and relationships, and social or other difficulties. The Migration Court of Appeal had stated in another case (MIG 2010:10) that an individual's personal circumstances and the ability to reside with his family in the designated internal displacement location should weigh heavily when considering whether it would be reasonable to refer the person there. The Migration Court therefore believed that the applicant’s ability to settle with his family in the KRG should weigh heavily in the assessment. The Migration Board invoked their Senior Legal expert’s comment on Christians in Mosul. According to this, only single adult males could normally reasonably be able to settle, but for families with children, unaccompanied minors and single women without a network, a more individualised assessment had to be made.

The Migration Court did not consider that the country of origin information from the Migration Board clearly indicated that the requirement for a sponsor did not exist either to enter or to legally establish oneself in the KRG. That an easing of the requirement had previously been granted did not mean, according to the Court, that this still applied. Even if the applicant in the absence of a sponsorship would not be deported from the KRG, it did not mean that he would automatically have the right to establish himself there.

In light of the caution to be applied in the assessment of internal protection alternatives for families, the Migration Court did not believe that the Migration Board in its country of origin information had sufficiently established that the applicant could legally establish himself in the KRG and have a real opportunity to support his family. Since the Migration Board failed to demonstrate that the KRG was a relevant and reasonable internal protection alternative for the applicant, he was judged to be in need of international protection.

Outcome:

The Migration Court quashed the Migration Board's decision to expel and granted the applicant permanent residence and refugee status.

Other sources:

Section 25, UNHCR Guidelines on international protection “Internal Flight or Relocation Alternative” within the context of Article 1 A (2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees