Sweden – Migration Court, 2 December 2010, UM 10296-10
Keywords:
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
Headnote:
When medico-legal evidence of torture is provided by specialists and found credible it is incumbent on the Migration Board to put forward evidence that there is no further risk of torture in the relevant country.
Facts:
A man from Libya was falsely accused of compromising a girl’s honour. The real perpetrator was a man from a high status family who knew the girl’s family, and was of a similar social standing. The applicant was captured and subjected to torture. He was later assisted by his brother to escape from Libya. In the first instance it was found that his account lacked credibility. The only evidence of torture presented was notes from the applicant's medical journal, which were dismissed as insufficient. At the appeal stage the Migration Court gave its approval for medico-legal examinations to be carried out.
Decision & reasoning:
During the oral hearing the Court found the applicant’s account of his torture credible and consistent with the medico-legal evidence. Referring to the ECtHR judgement R.C v Sweden (application no.41827/07) 9th March 2010 the Court stated that when an applicant has satisfied the burden of proof that he has already been tortured, the burden of proof then rests on the state to dispel any doubts whether there is a future risk that the complainant will be tortured again, contrary to Art 3 of European Convention. The Migration Court found that the Migration Board had not shown that the applicant, on return to his country, would not be likely to be subjected to torture again.
The Migration Court held that they could not exclude the possibility that there is a future risk to the complainant on return to Libya where he might again be subjected to torture.
Outcome:
Protection granted on subsidiary grounds.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2 |