Sweden - Migration Court of Appeal, 11 May 2010, UM 6397-09
Keywords:
| Keywords |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
Headnote:
When assessing the availibility of an internal protection alternative the possibilities for the applicant to live together with his/her family in the country of origin should be taken into account. This applies even if the applicant’s family are not seeking asylum in Sweden. However, first a need for international protection needs to be established.
Facts:
The applicant claimed his need for protection applied to the whole of Iraq. He could not live in peace with his family anywhere in the country as they risked persecution on religious grounds throughout the country (the family are both Sunni and Shia Muslims). Internal protection was thus not an available option as the assessment of such protection must be made in relation to the family as a whole, even if only one of the family members has applied for asylum (the applicant’s family lived in Syria since 2008).
The Migration Board denied the application on 28 May 2008, stating both that the applicant was not eligible for protection and that the assessment of available internal protection cannot take into account family members not applying for asylum in Sweden. Internal protection was considered available for the applicant as an individual. The Migration Court revoked the decision on 30 June 2009, stating that access to internal protection must be seen in the context of the family as a whole. The Migration Court appealed to the Migration Court of Appeal.
Decision & reasoning:
The main issue in the case was whether access to internal protection includes consideration of the possibilities for a family to live together. In its reasoning the Migration Court of Appeal referred to Article 8 of the Qualification Directive and its own earlier case law in which it is established that the applicant’s personal circumstances, as well as the reasonableness of the internal flight alternative offered, are important factors. The Court then stated that guidance regarding the concept of “personal circumstances” must be sought in UNHCR Guidelines on Internal Flight.
From the UNHCR Guidelines it was concluded by the Court that the applicant’s personal circumstances, as well as the possibilities of living with one’s family, should be given considerable weight. This applies also if the rest of the family is not present in the country of asylum, presuming the family intends to reunite. “Family” refers to (at least) a spouse and under-aged children.
The Migration Court of Appeal however pointed out that for internal protection to be assessed, the applicant first must be determined to be in need of international protection (see MIG 2007:9). In this particular case the Court found that the applicant indeed had shown that he had experienced what he had claimed, but that these events where not such as to make him eligible for international protection. Asylum therfore could not be granted.
Outcome:
The judgment of the Migration Court was revoked and the decision of the Migration Board confirmed.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2 |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2(a) |
Cited Cases:
| Cited Cases |
| Sweden - Migration Court of Appeal, 14 January 2009, UM 4118-07 |
| Sweden - MIG 2007:9 |
| Sweden - MIG 2007:33 II |
| Sweden - MIG 2008:20 |
Other sources:
UNHCR Guidelines on international protection, ”Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees