Sweden - Migration Court of Appeal, 9 September 2011, UM 3891-10

Facts:

The applicant applied for asylum in June 2007. The Migration Board denied his application based on his former activities and his possible involvement in serious violations of human rights. However, due to the risks the applicant would face if the expulsion were carried out he was granted a one year residence permit. In April 2010 the Migration Court upheld the first instance decision, with reference to possible crimes against humanity.

Decision & reasoning:

The applicant claimed that he should not be treated differently to former colleagues that had previously been granted asylum in Sweden. He claimed to have neither knowledge nor responsibility for the crimes committed by the security services.

The Migration Court of Appeal first concluded that the applicant without doubt qualified for refugee status. The Court then when on to analyse provisions of international law, EU law and domestic law to assess whether the exclusion clauses of these instruments were applicable to the applicant. The Court also made clear that it would apply the definition of “crimes against humanity” included in the ICC Statute.

The Court then concluded that such crimes indeed had taken place in Iraq during the applicant’s service in the security forces and that he, taking his position as a high ranking officer into account, could not benefit from the principle of the benefit of the doubt. Instead it should be presumed, the Court argued, that he held personal responsibility for the crimes against humanity committed by the security services during his 23 years of service.  The Court also referred to the ECJ judgment of 9 November 2010 in C-57/09 and C-101/09 (Bundesrepublik Deutschland v. B and D respectively) in this assessment.

For the same reasons as those outlined above, the applicant was disqualified from subsidiary protection due to his involvement in crimes against humanity. The Court discussed if Articles 2 and 3 of the Qualification Directive could prevent a Member State from granting a person, such as one described above, a residence permit on grounds other that refugee or subsidiary protection status but found that this was not the case. However, the applicant was not considered eligible for any such grounds.

However, like the lower instances, the Migration Court of Appeal considered, in the light of the principle of non-refoulement,  that it was impossible for the expulsion to be enforced and granted the applicant a one year residence permit. A one year permit was granted as the reasons the expulsion was considered impossible were not regarded as permanent.

Outcome:

Appeal denied, Migration Court of Appeal decision confirmed the judgment of the Migration Court.

Observations/comments:

By Swedish standards, an extensive judgment with unusual amounts of references to and analysis of international law.

Other sources:

Guidelines on International Protection: Application of the Exclusion Clauses: Article l F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05

Amnesty International and State Department reports.