Sweden - Migration Court of Appeal, 11 February 2013, UM 2953-12, MIG 2013:2

Facts:

A man from Afghanistan, A, applied in June 2011 for leave to remain in Sweden. The Swedish Migration Board questioned the credibility of his account and therefore rejected the application on 27 October 2011. A appealed to the Migration Court, which in March 2012 overturned the Swedish Migration Board's decision to deport him and instead granted him permanent leave to remain and subsidiary protection status. The Swedish Migration Board appealed against the Migration Court's judgment to the Migration Court of Appeal, saying that the Migration Court had not investigated whether or not there was an internal protection alternative, which ought to be an integral part of any protection assessment, and that the Court has thus failed to fulfil its obligation to investigate under § 8 of the Administrative Court Procedure Act (1971:291). ‘A’ contested the leave to appeal, saying that it is the Swedish Migration Board's duty to cite and prove an internal protection alternative whose existence means that the foreigner cannot be said to need protection. The Swedish Migration Board did not cite any internal protection alternative to the Court and thus failed to indicate a sufficiently concrete, specific area that could constitute an internal protection alternative for A. This suggests, according to A, that the Swedish Migration Board's conduct can be seen to reflect active opposition to the applicability of internal protection.

Decision & reasoning:

The Migration Court of Appeal granted leave to appeal, and the question the Court was to settle was whether an internal protection alternative was applicable to A and, above all, what responsibility the courts have to investigate and assess whether there is such an internal protection alternative.

The Migration Court of Appeal referred first to Paragraph 91 of the UNHCR Handbook and Article 8 of the EU Qualification Directive and then concluded that a fear of persecution need not always concern the whole territory of the country of origin and that there is no need for international protection if the asylum seeker has an internal protection alternative. The Court then referred to the statements on the preparatory work on the relevant legislation and the Migration Court of Appeal's practice concerning internal protection. It was furthermore found that the assessment must be made in the same way regardless of whether it concerns refugee status or subsidiary protection. The Court concluded that, under Sweden's international obligations, the applicability of an internal protection alternative must be investigated in connection with the assessment of whether a person is a refugee or in need of protection. The conclusion therefore cannot be drawn, according to the Court, that an asylum seeker needs international protection without taking into consideration his opportunity to reside elsewhere in the country of origin.

The Migration Court of Appeal then recalled the Migration Court's obligation to investigate under § 8 of the Administrative Court Procedure Act and that the preparatory work on the provisions in question also makes clear that it is ultimately the Court that is responsible for the investigation in a case, but that the scope of the responsibility varies from case to case and that it may fall largely to the parties themselves to carry out an investigation. Normally, the Court can be expected to tell a party it must supplement its pleadings in some way. Furthermore, it was recalled that it is the first instance that is chiefly responsible for the investigation, in other words the Swedish Migration Board, in this case. As to the assessment of whether a person is a refugee or in need of protection, the Migration Court of Appeal made clear that the Court must ensure that sufficient investigation has taken place for it to be able to rule on the question of internal protection. If insufficient information is available in the case, the Court, according to the Migration Court of Appeal, must actively manage the case and request the necessary information. The fact that it is the Swedish Migration Board that has the burden of proving there is a reasonable and relevant internal protection alternative (cf. MIG 2009:4) does not relieve the Court of the responsibility for assessing internal protection in connection with the assessment of the need for protection. As it could not be clearly inferred from the Migration Court's judgment that the Court has taken a view on the internal protection alternative, the case was returned to the Migration Court for further examination.

The Migration Court's decision on leave to remain and subsidiary protection status was overturned.

Outcome:

The appeal was upheld, and the case was returned to the Migration Court for further examination.

Other sources:

UNHCR's Guidelines on International Protection: 'Internal Flight or Relocation Alternative' within the context of Article 1 A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, Section III. A. (33)–(34).

Prop. 2005/06:6 p. 28, prop. 1996/97:25 p. 101, prop. 2009/10:31 p. 135, prop. 1971:30 p. 529 et seq., prop. 2004/05:170 p. 154.