Sweden - Migration Court of Appeal, 24 October 2011, UM 2599-11
Keywords:
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
Conversion to Christianity led to a re-examination of impediments to enforcement.
Facts:
The applicant had previously applied for asylum but had his application denied. The decision had entered into force (2009). In January 2011 he requested a re-examination of his case due to new circumstances impending the enforcement of the expulsion order. The new circumstances invoked were that he had converted to Christianity. On 18 February 2011 the Migration Board decided not to grant a re-examination as the new circumstance were not found to constitute a need for protection as expressed in Chapter 12 Sections 1-3. The Stockholm Migration Court found that the applicant had not presented a valid reason as required in Chapter 12 Section 19 for not invoking the conversion earlier.
Decision & reasoning:
The Migration Court of Appeal began the judgement with a discussion of Articles 32 and 34 of the Qualification Directive and how these correspond to the Swedish law Chapter 12 Section 19. The Migration Court of Appeal then concluded that the applicant had not been able to present the new circumstances in any open case. Furthermore, an asylum seeker is not obliged to invoke circumstances regarding impediments to enforcement within a specific period of time. The applicant can therefore not have been expected to present a valid excuse as regards his conversion. The Migration Court thus had no right to dismiss the appeal on such grounds. The Migration Court of Appeal finally found that there had been no assessment in the Migration Court regarding whether the new circumstances could present a lasting impediment to the enforcement of an expulsion order.
Outcome:
The case was remitted to the Migration Court.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 12 Section 19 |