Sweden - Migration Court of Appeal, 20 June 2011, UM 1614-11

Facts:

The applicant, from Iraq, had his asylum application rejected by both the Migration Board and the Migration Court in October 2009. No leave to appeal was granted. In November 2010 the applicant made a subsequent application claiming hindrances to expulsion. While this application was being processed, a submission was made by the applicant to the European Court of Human Rights requesting the application of Rule 39 (interim measures). The Migration Board decided (based on Chapter 12 section 12 of the Aliens Act) to grant the interim measure and ordered a stay on expulsion until at least the 8th December 2010. On the 18th December 2010 the Board decided not to grant a residence permit based on Chapter 12 section 18 of the Aliens Act, nor to grant an examination of the case according Chapter 12 section 19 as set out below:

Section 18

If, in a case concerning the enforcement of a refusal-of-entry or expulsion order that has become
final and non-appealable, new circumstances come to light that mean that:

1. there is an impediment to enforcement under Section 1, 2 or 3,
2. there is reason to assume that the intended country of return will not be willing to accept the
alien or
3. there are medical or other special grounds why the order should not be enforced,
the Swedish Migration Board may grant a permanent residence permit if the impediment is of a
lasting nature.
If there is only a temporary impediment to enforcement, the Board may grant a temporary
residence permit.
The Swedish Migration Board may also order a stay of enforcement.

Section 19

If, in a case concerning the enforcement of a refusal-of-entry or expulsion order that has become
final and non-appealable, an alien invokes new circumstances:

1. that can be assumed to constitute a lasting impediment to enforcement referred to in Section 1,
2 or 3 and
2. these circumstances could not previously have been invoked by the alien or the alien shows a
valid excuse for not previously having invoked these circumstances,
the Swedish Migration Board shall, if a residence permit cannot be granted under Section 18, reexamine
the matter of a residence permit and issue an order staying the enforcement case.
If the conditions set out in the first paragraph have not been fulfilled, the Swedish Migration
Board shall decide not to grant a re-examination.

The applicant appealed the decision to the Migration Court. The Migration Court stated that since the Migration Board had ordered a stay on explusion based on the request from the European Court of Human Rights in accordance with Chapter 12 section 12, there were no legal grounds to examine the application. It was only when the Migration Board had made a final decision on the substance of the application that the decision could be appealed. Therefore, the appeal was quashed. The applicant then turned to the Migration Court of Appeal to request a new examination. Leave to appeal was granted.

Decision & reasoning:

The Migration Court of Appeal stated that the case raised the issue of whether there was an expulsion case at hand, given that a decision to stay the expulsion had been made. A precondition for examining a case according to Chapter 12 section 19 is that there is an enforceable expulsion order. From section 16 of the same chapter, it is clear that if the Migration Board grants a temporary permit, but does not remove the expulsion order, it is not possible during that period to expel the person concerned. The Appeals Court had earlier confirmed that in such a situation there can be no case regarding hindrances to expulsion (MIG 2007:52).

However, there is no comparable section in the law concerning a stay on an expulsion order. A decision to stay an explusion order is different from granting a temporary permit, since it can at any time be replaced by another decision. A decision to stay does not mean that a position has been taken regarding the substance of the case. The Appeals Court had established in an earlier case that the fact that a removal order cannot be executed temporarily does not mean that the expulsion case is exhausted (MIG 2009:15). The fact that a stay on explusion requested by the ECtHR was complied with, does not mean that there is no longer an expulsion case. Therefore, the Migration Board should have examined the possibility of making a new examination of grounds for a permit in accordance with Chapter 12 section 19 of the Aliens Act.

Outcome:

The appeal was upheld. The decisions of the lower instances were quashed and the Migration Board was ordered to re-examine the case.

Subsequent proceedings:

Re-examination of new circumstances by the Migration Board based on Chapter 12 Section 19 of the Aliens Act.