Sweden - Migration Court of Appeal, 25 October 2010, UM 7664-09

Facts:

The female applicant’s application for asylum was denied by the Migration Board on April 23 2009. The Stockholm Migration Court upheld the decision on 19 August 2009. The applicant appealed the decision to the Migration Court of Appeal, claiming both need for protection and humanitarian considerations. The latter claim was based on the fact that the woman suffered from leukemia which would lead to her death if not treated properly. The treatment she had received in Sweden had had an obvious and lasting effect on her condition.

The Migration Board argued that as the medicine the applicant is dependent upon is available in Mongolia a residence permit based on “exceptionally distressing circumstances” (Aliens Act Chapter 5 Section 6) should not be granted. That medical care and medicine is more expensive in the country of origin and that medicine must be acquired by the individual him/herself in the open market are not sufficient reasons to alter this conclusion. 

Decision & reasoning:

The Migration Court of Appeal initially stated that there were no protection grounds applicable in this case.
As regards humanitarian considerations (falling under “exceptionally distressing circumstances” in the Aliens Act Chapter 5 Section 6) it is stated that this provision should be applied restrictively (MIG 2007:15 and MIG 2010:6). For a residence permit to be granted to adults based on medical reasons only, the applicant’s health condition must be exceptionally serious (MIG 2007:35). It can be noted that in older case law, the risk of lack of access to necessary medicines has been taken into account (UN 19-93 I).

In its reasoning, the Migration Court of Appeal established that it is the applicant who is to show that necessary preconditions for a residence permit apply (MIG 2007:15, MIG 2007:43). It can be concluded from previous case law that the threshold for evidence is set higher for circumstances that reasonably could be confirmed by the applicant but lower for circumstances more difficult to prove (MIG 2007:15, MIG 2007:35). In the latter case the threshold cannot be set too high and in absence of any contrary evidence from the opposite party the statements of the applicant shall be accepted if they appear credible and probable (MIG 2010:6). 

The Court established that the medical condition of the applicant was grave enough to allow for a residence permit to be granted. Furthermore, the treatment available in Sweden would not result in unreasonable economic consequences if a permit were granted. Of decisive importance was whether the applicant has access to adequate care in Mongolia. The fact that medicine might only be available on the black market can lead to uncertainties as regards access to care. The Court considered it unreasonable for the applicant to be forced to use unofficial, or even illegal, channels in order to acquire the medicines necessary. 

The information provided by the applicant was consistent, probable and credible and was also supported by written evidence. The Migration Board was given opportunity to refute the information and was also commissioned to further investigate the matter. As this has not been the case the information provided by the applicant must be accepted. Therefore, the applicant shall be granted a residence permit due to exceptionally distressing circumstances according to Chapter 5 Section 6 of the Aliens Act. 

Outcome:

The Migration Court of Appeal granted the appeal.