Sweden - Migration Court of Appeal, 18 September 2013, UM 795-12, MIG 2013:16

Facts:

A and his mother sought asylum in Sweden in 2002, when he was 15. Their applications were rejected by the Swedish Migration Board, and the Aliens Appeal Board upheld the decision in 2005. Four years later, the decisions lapsed due to limitation. In December 2009, they applied for asylum once more. The mother's new grounds for asylum were found sufficient for her to be deemed a refugee in accordance with Chapter 4(1) of the Aliens Act (2005:716). The mother was thus granted permanent leave to remain and refugee status and she was issued with travel documents. A's application was rejected, whereupon A appealed against the Swedish Migration Board's decision to the Migration Court, which in turn rejected the appeal. A appealed against the judgment to the Migration Court of Appeal, citing chiefly that the mother's protection grounds would have serious consequences for him in his home country, that he was still just as dependent on his mother as when they arrived in Sweden, that his health problems meant that the relationship between them was closer than is usual, and that they were still living together. The Swedish Migration Board contested the leave to appeal. The Migration Court of Appeal granted leave to appeal in order to be able to assess the question of the significance accorded to the principle of family unity when an adult's application for leave to remain is being assessed.

Decision & reasoning:

The Migration Court of Appeal first of all explained the principle of family unity under international law, referring specifically to points 181–188 of the UNHCR Handbook, Article 16(3) of the UN Universal Declaration of Human Rights, and Article 8 of the ECHR. Then, the Court referred to the provisions of the EU Qualification Directive concerning family unity, specifically Articles 23(1), (2), and (5) and Recital 27 to the Directive. The Court also explained statute and the preliminary work on domestic legislation before moving to the question of how the concept of the family should be interpreted in accordance with the UNHCR Handbook, the ECHR, and the EU's Qualification Directive. It was concluded that the minimum requirement under the UNHCR Handbook is that the spouse and minor children be included in the concept of the family, but that other family members are also typically included provided that they belong to the same household. It was furthermore concluded that Article 8 of the ECHR to a certain extent applies also to relationships outside the core family but that the rights that can be derived under Article 8 are less extensive in relation to more distant family relations than in the case of relationships with parents and minor children. It was noted also that Article 2(h) of the Qualification Directive contains a definition of the term family members, but that Article 3 of the Directive permits Member States to apply more favourable standards, provided that such are compatible with the Directive.

The Migration Court of Appeal then summarised previous and current domestic practice with regard to the principle of family unity, in other words decision UN 415-08 of the Alien Appeals Board, which found that the family (the spouse and children aged 8, 17, and 20) of a man who was excluded from refugee status should be granted permanent leave to remain as refugees, and decision MIG 2012:14, in which the Migration Court of Appeal ruled that an adult son should be covered by the principle of family unity and therefore, in line with the father, should be granted permanent leave to remain and refugee status.

Then, the Court discussed the judgments of the ECtHR in Nacic and others v Sweden (Application no. 16567/10) and A.A. v United Kingdom (Application no. 8000/08). In the former case, no breach of Article 8 was found to have been committed. By contrast, the Court, in the latter case, which concerned a young man (of 24), who had not formed his own family, found that there was a family life and that deportation would be disproportionate and would result in a breach of Article 8.

The Migration Court of Appeal then proceeded to apply the above provisions to the adult man's appeal. Firstly, the Migration Court of Appeal agreed with the Migration Court that the man was not risking treatment that would qualify him for protection were he to be returned and therefore could not be granted leave to remain on these grounds. The Court then noted that it was necessary to consider whether the man, on application of the principle of family unity, in line with the provisions contained in the UNHCR Handbook and Article 8 of the ECHR, should nonetheless be granted leave to remain as a refugee, as had his mother. The purpose of this would be to protect the family from being broken up. It was recalled that the principle of family unity primarily concerns core family members, comprising parents and minor children, but may also be applied in other situations.

The Migration Court of Appeal then found that the investigation had not revealed anything other than that the man and his mother belonged to the same household and that they had to be viewed as a family both under the provisions of the UNHCR Handbook and within the meaning of the ECHR. As he and his mother had been living together for more than ten years in Sweden and were still living together, as they had lived together even before they moved to Sweden, and as the mother is a refugee and therefore cannot return to her home country, deportation was viewed as disproportionate. There were therefore grounds for granting him permanent leave to remain under Chapter 5(1), first paragraph of the Aliens Act, granting him refugee status, and issuing him with travel documents.

Outcome:

The appeal was upheld. The Swedish Migration Board's decision was overturned, permanent leave to remain and refugee status were granted, and travel documents were issued.

Other sources:

Geneva Expert Roundtable, Summary Conclusions on Family Unity, 8–9 November 2001; Executive Committee of the High Commissioner’s Programme, EC/49/SC/CPR.14, 4 June 1999, Family Protection Issues; prop. 2009/10:31 pp. 74 and 145 et seq.; SOU 2006:6 p. 251–252 et seq. and 261 et seq..; Article 16.3 of the United Nations Universal Declaration of Human Rights (1948)