Sweden - Migration Court of Appeal, 15 June 2007, UM 837-06
Keywords:
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
Honour-related violence should be examined in the context of grounds for protection and not humanitarian considerations. The Migration Court of Appeal also discussed the application of the benefit of the doubt.
Facts:
The applicant claimed as grounds for protection that he had had a relationship with a woman whose family did not accept him. His life was threatened by her relatives and they already killed his fiancé. He is also accused for kidnapping her when they escaped together. He also referred to the dangerous situation in Iraq in general. The Migration Board denied the application in January 2006, mainly due to lack of credibility. The Malmö Migration Court however on 3 October 2006 granted him a residence permit based on exceptionally distressing circumstances (Aliens Act Chapter 5 Section 6) with reference to the difficulties he would be subject to in case of return. The Migration Board appealed the decision to the Migration Court of Appeal.
Decision & reasoning:
It its judgment, the Migration Court of Appeal stated that the main grounds for a right to residence (i.e. protection and family ties) should be tried thoroughly before the possibility of a residence permit based on exceptionally distressing circumstances is assessed. In this context, the Court emphasized that the Government had, in the traveaux préparatoires, clearly stated that protection grounds must be kept apart from other grounds when assessing potential grounds for granting a residence permit. In the present case, the Court stated that risk of honour-killing should be seen as falling within the scope of potential protection grounds and not as exceptionally distressing circumstances.
The Migration Court of Appeal also discussed the application of the benefit of the doubt. It was emphasized that the principle only applies when evidence has been examined and the general credibility of the applicant has been established.
The Migration Court of Appeal established that the Migration Court had – incorrectly - assessed the credibility of the applicant before examining the evidence. The Migration Court of Appeal emphasised that it is of upmost importance that the courts and authorities make a clear distinction between what is evidence and what is the applicant’s statement. In the present case the Court did not find that the applicant had presented a credible account of events nor a need for protection and therefore he could have the benefit of the doubt. The applicant was thus considered not to have legitimate claim for protection either as a refugee (Aliens Act Chapter 4, Section 1) or on subsidiary grounds (Chapter 4 Section 2). Neither did the Court find that the claims were such that a right to residence could be granted because exceptionally distressing circumstances (Chapter 5 Section 6).
Outcome:
The appeal was granted, the former judgment revoked and asylum denied.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Sweden - UM 1198-06 |
| Sweden - MIG 2006:1 |
| Sweden - MIG 2007:9 |
| Sweden - MIG 2007:12 |
| Sweden - MIG 2007:15 |