Sweden - Migration Court of Appeal, 10 December 2010, UM 7706-10
| Country of Decision: | Sweden |
| Country of applicant: | Afghanistan |
| Court name: | Migration Court of Appeal |
| Date of decision: | 10-12-2010 |
| Citation: | UM 7706-10 |
Keywords:
| Keywords |
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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
A transfer to Greece within the framework of the Dublin Regulation was stopped due to the conditions for asylum seekers in the country.
Facts:
The applicants (a mother and two children) applied for asylum in Sweden in Jan/Feb 2010. The family was found to have entered Greece illegally. The Migration Board decided to transfer the applicants to Greece according to the Dublin regulation (Dublin II) in May 2010. Greece did not protest. The decision was appealed to the Malmö Migration Court which on 31 August 2010 reversed the decision and remitted it to the Migration Board for the asylum applications to be examined. The Migration Court based its decision on the unacceptable conditions for asylum seekers in Greece and stated that Sweden should assume responsibility according to Art 3.2 of the Dublin II Regulation. The Migration Board appealed the decision to the Migration Court of Appeal in order to clarify applicable law. The Migration Court of Appeal stopped the execution of the transfer until its judgment had been delivered.
Decision & reasoning:
The judgment begins with an account of the conditions for asylum seekers in Greece, including references to investigations by the Migration Board, international reports and pending cases in the ECJ and the ECtHR. The Migration Court of Appeal then stated, referring to its previous case law, that although it is important that the Dublin II Regulation is implemented, there are no formal obstacles against Sweden assuming responsibility for the examination of a particular application for asylum. What matters if there are reasons presented in the individual case for Sweden not to apply the Dublin II Regulation.
In its discussion of whether these conditions apply to this particular case, the Court referred to international law on non-refoulement as well as its own previous case law on Dublin II and Greece (MIG 2008:42). At the time of the decision in the aforementioned case, the Migration Court of Appeal did not find a transfer of an asylum seeker to Greece according to the Dublin regulation to be a violation of Art 3 of the ECHR.
At this point, however, the Court found that the conditions for asylum seekers in Greece had become unacceptable and that there was a real risk of their asylum applications not being examined according to the principles of rule of law. The Court therefore concluded that a transfer of asylum seekers to Greece at this time would constitute a violation both of Swedish law and of Art 3 of the ECHR. The Court concluded that even though the situation in Greece was mainly a question for the EU instead of national courts, and though there were cases pending on the matter in both the ECJ and the ECtHR, it would not be reasonable to put the examination of individual applications for asylum on hold until the matter had been settled in higher instances. Drawing on Art 3.2 of the Dublin regulation, the Court stated that Sweden should assume responsibility for these particular applications for asylum.
Outcome:
Appeal denied.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and ME (UP) |
| Sweden - MIG 2007:8 |
| Sweden - MIG 2008:42 |
| Sweden - MIG 2010:18 |
Follower Cases:
| Follower Cases |
| Sweden - Migration Court of Appeal, 9 December 2013, UM 1412-13, MIG 2013:23 |
Other sources:
UN Office of the High Commissioner for Human Rights, UN Special Rapporteur on Torture presents preliminary findings on his Mission to Greece, 20 October 2010
M.S.S. v. Belgium and Greece (Grand Chamber judgment pending at the time of decision)