Sweden - Migration Court of Appeal, 3 December 2009, UM 4081-09
| Country of Decision: | Sweden |
| Country of applicant: | Afghanistan |
| Court name: | Migration Court of Appeal |
| Date of decision: | 03-12-2009 |
| Citation: | UM 4081-09 |
| Additional citation: | MIG 2009:34 |
Keywords:
| 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examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned.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:
If re-examination of a case under the Aliens Act Chapter 12 Section 19 (provides for re-examination of a claim on the presentation of information supporting a need for international protection) has been granted, the Migration Board cannot deny a residence permit without an oral healing having been held.
Facts:
The complainant was granted a re-examination of his case based on the Aliens Act Chapter 12 Section 19 as he presented new information supporting his need for international protection. The Migration Board however denied the application on the 23 February 2009. The Stockholm Migration Court reached the same conclusion on 27 April 2009.
In the appeal to the Migration Court of Appeal it was argued that both the Migration Board and the Migration Court had limited their examination of the case to the evidence presented and not held an oral hearing. As a result, the credibility of the circumstances now invoked had not been assessed. The re-examination was therefore incomplete.
Decision & reasoning:
The Migration Court of Appeal established that when 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 concerning his/her need for protection, this will have to be considered a request for international protection as described in Article 2 (b) of the Asylum Procedure Directive. In earlier case law (MIG 2008:39) an applicant on these grounds has been considered as having the right to an examination of his/her case according to the Aliens Act Chapter 14, even though this is not expressively stated in the Act. The Court also established that Chapter 13 Section 1 ensures that the Migration Board does not issue a refusal-of-entry or expulsion order without an oral procedure.
When a residence permit has been denied after a case has been re-examined, the earlier order of expulsion remains and a new decision on this point is not necessary. This however does not mean, the Migration Court of Appeal concluded, that an applicant who has invoked new circumstances is not entitled to an oral procedure. The Migration Board therefore cannot deny a residence permit following a Chapter 12 Section 19 re-examination without an oral hearing having been held.
Outcome:
The Migration Court of Appeal revoked the decision of the Migration Board and the judgment of the Migration Court and remitted the case to the Migration Board.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-41/74 Van Duyn v Home Office |
| Sweden - MIG 2008:36 |