Sweden - Migration Court of Appeal, 14 June 2013, UM 8090-12, MIG 2013:8

Facts:

The Applicant B, and her children C and D (hereinafter family A), who are from Russia, sought asylum in Sweden in August 2011. They cited grounds for protection in relation to Russia based firstly on B's spouse's political activities and secondly on B not being able to count on protection from the authorities from B's spouse, who abused her for a long time. The examination by the Swedish Migration Board revealed that family A had been granted leave to remain and refugee status in the Czech Republic. B's spouse had also been granted leave to remain on the same occasion. Family A then cited grounds for protection both in relation to Russia and in relation to the Czech Republic. The grounds for protection cited by B in relation to the Czech Republic were that her spouse had abused her for many years and that, were she to be forced to return to the Czech Republic, she would be abused once more and could not count on protection either from the authorities or from voluntary organisations in the Czech Republic.

The Swedish Migration Board rejected the family's applications for leave to remain on 1 April 2012, based on Chapter 5, § 1 b(1)(1) of the Foreigners Act (which is based on Article 25(2)(a) of the Asylum Procedures Directive) and ordered their deportation from Sweden to the Czech Republic.

Family A appealed against the decision to the Migration Court, which overturned the decision and returned the case for further examination. The Court said that, as the Applicants had applied for international protection in relation to a country where they had been granted asylum, Chapter 5, § 1 b of the Foreigners Act did not apply. The fact that the examination procedure is usually simplified when the examination concerns an EU Member State does not mean that the application does not have to be examined substantively.

Decision & reasoning:

The Swedish Migration Board appealed against the decision to the Migration Court of Appeal, which upheld the appeal. The Migration Court of Appeal cited the following grounds, amongst others: the principle of non-refoulement covers not just refugees but also others who are eligible for protection. Under EU law, this principle has been enshrined in several contexts.

Under domestic Swedish law, this principle of non-refoulement is reflected also in Chapter 12, § 1 and § 2 of the Foreigners Act. The principle of non-refoulement plays a significant role within migration law. This does not mean, however, that every application for asylum filed with the Swedish authorities must be examined substantively in Sweden (cf. MIG 2012:9 and MIG 2012:20).

Family A are citizens only of Russia and for this reason alone cannot be granted asylum in relation to the Czech Republic (cf. MIG 2012:20). Their applications must therefore be seen as asylum applications in relation to Russia.

The circumstances that family A say constitute grounds for protection in relation to the Czech Republic cannot be viewed as grounds for asylum within the meaning of the Foreigners Act, as they are cited in relation to a country other than that of which the family are citizens. On the other hand, the circumstances may make Chapter 5, § 6 of the Foreigners Act relevant; in other words, particularly distressing circumstances that are not related to a need for protection.

In accordance with the wording of Chapter 5, § 1 b(1) of the Foreigners Act, it is the application for asylum that may be rejected if the individual has refugee status in another EU state. It is a basic principle of Swedish law governing foreigners that the Applicant must have the application for leave to remain (regardless of the grounds for leave) examined in a single process (cf. MIG 2007:31). Chapter 5, § 1 b(1)(1) of the Foreigners Act should therefore be interpreted as meaning that an application for leave to remain may be rejected if the Applicant has been granted refugee status in another EU state.

The provision in question is discretionary, which means that there is scope for substantively examining an application such as this in Sweden even if the Applicant has indeed been granted refugee status by another EU Member State.

Family A's applications for leave to remain cannot be rejected if deporting them to the Czech Republic would be found to conflict with the principle of non-refoulement. The Swedish Migration Board has found, however, that family A is protected from persecution in the Czech Republic and that the family also does not risk being deported from there to their country of origin or to another country where they are not provided with the relevant protection. According to the Swedish Migration Board, the family's applications for asylum should not be examined in Sweden but should be rejected.

The Court took the view that no grounds have emerged supporting serious fears that the Czech Republic will not fulfil its obligations in this regard. There are no grounds, therefore, for disagreeing with the Swedish Migration Board's assessment regarding the family's need for protection and the availability of protection in the Czech Republic.

Furthermore, the circumstances that family A cited in favour of leave to remain justify an examination within the context of the humanitarian grounds referred to in Chapter 5, § 6 of the Foreigners Act. The question to examine is therefore whether these circumstances could constitute sufficient grounds for not applying Chapter 5,  1 b(1)(1) of the Foreigners Act.

Under Swedish law, a decision on transfer under the Dublin Regulation results in an asylum application being rejected. In MIG 2007:32, the Migration Court of Appeal stressed that strong humanitarian grounds are required for the Dublin Regulation not to be applied.

The Migration Court of Appeal believes that a similar approach should be taken also when interpreting Chapter 5, § 1 b(1)(1) of the Foreigners Act. The mere fact that family A has cited circumstances that could be covered by the provision contained in Chapter 5, § 6 of the Foreigners Act does not therefore mean that their applications for leave to remain must be examined substantively in Sweden. No circumstances have emerged in family A's case that would make it objectionable to reject the applications on humanitarian grounds.

The Swedish Migration Board may therefore, according to the Migration Court of Appeal, be seen to have sufficient grounds for rejecting family A's applications for leave to remain, by virtue of Chapter 5, § 1 b(1)(1) of the Foreigners Act, and for ordering their deportation from Sweden.

Outcome:

The Migration Court of Appeal upheld the appeal.