Sweden - Migration Court of Appeal, 18 March 2016, UM 425-16
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The Court of Appeal concluded that the referral of an appeal under the Dublin III Regulation to an administrative agency breaches an applicant’s right to efficient remedy.
Facts:
The applicant (the “Applicant”) appealed a decision by the Swedish Police Authority’s to transfer the Applicant to Hungary in accordance with the Dublin III Regulation, to the Swedish migration court (the “Migration Court”). In its decision, the Swedish Police Authority had stated that the Swedish migration agency (the “Migration Agency”) was the right forum in which to appeal the decision under the Aliens Act (2005:716).
The Migration Court rejected the Applicant’s appeal and referred the Applicants’ case back to the Migration Agency on the basis that, according to the Aliens Act, the Swedish Police Authority’s decisions can only be appealed if such right of appeal is granted by the Aliens Act, and if so, only to the designated forum of appeal. Further, the Migration Court concluded that as the Swedish Police Authority’s decision to refuse entry according to the Aliens Act can be appealed to the Migration Agency, the Swedish Police Authority’s decision to transfer the Applicant under the Dublin III Regulation should similarly be appealed to the Migration Agency.
Both the Applicant and the Swedish Police Authority appealed the Migration Court’s decision, arguing that a right to appeal to the Migration Agency was insufficient to fulfil the Applicant’s right to an effective remedy under the Dublin III Regulation and that the Applicant had the right to have its case examined by a court.
Decision & reasoning:
The administrative court of appeal in Stockholm (the “Court of Appeal”) initially noted that the Dublin III Regulation has direct effect in Sweden and that it supersedes national legislation. The Court of Appeal then held that the Dublin III Regulation gives an applicant the right to have their case examined by a competent court, and that the Aliens Act’s appeal provisions cannot be applied in such way that an applicant’s case is instead appealed to an administrative agency instead of a court of law.
Based on the above, the Court of Appeal held that the Applicant’s appeal must be examined by the Migration Court.
Outcome:
The Migration Court’s decision was dismissed and the Applicant’s appeal was referred back the Migration Court.
Observations/comments:
This case summary was written by Linklaters LLP.
This case summary was proof read by Samuel Palmer.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Ch. 1 |
| Cl. 9 Aliens Act (2005:716) |
| Sweden - Ch. 14 |
| Cl. 2 Aliens Act (2005:716) |