Sweden - Migration Court of Appeal, 22 December 2010, UM 2244-10
Keywords:
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
Headnote:
In order for an expulsion order to be immediately enforced it must be clear that the applicant is not at risk of persecution or similar treatment in the country of origin.
Facts:
The applicant claimed he fled the regime in Syria. He experienced great difficulties due to his Christian faith. He was also accused of starting riots in his home town and causing other problems there. The Migration Board denied his asylum application (29 December 2009) stating that it was manifestly unfounded and that the expulsion order could be immediately enforced (Aliens Act Chapter 8 Section 1 and 2). The Migration Court denied the appeal on the same grounds in its judgment of 25 February 2010.
Decision & reasoning:
The Migration Court of Appeal however did not agree. The Court emphasised that in previous case law (MIG 2006:7) it had stated that immediate enforcement of an expulsion order can only be applied when it is obvious that no grounds exist for granting asylum. An individual assessment must always be made. The Migration Court also stated that this assessment must ensure that no further deliberations are necessary, neither as regards credibility or if the claims presented could be grounds for asylum. It has to be clear that the alien is not at risk of persecution or other such treatment in the country of origin.
The circumstances invoked by the applicant were not of such a character that his application for asylum should be considered manifestly unfounded. There have thus not been any grounds for the immediate enforcement of an expulsion order. The decision and judgment of the lower instances are therefore revoked. Furthermore, new circumstances were presented during the process in the Migration Court of Appeal that could have an impact on the applicant’s right to a residence permit. The case was therefore remitted to the Migration Board.
Outcome:
The Migration Court of Appeal revoked the earlier decision/judgment and remitted the case to the Migration Board.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 19 |
Cited Cases:
| Cited Cases |
| Sweden - MIG 2008:36 |
| Sweden - MIG 2009:30 |