Sweden - Migration Court of Appeal, 31 May 2011, UM 10190-10

Facts:

The applicant entered Sweden with a Schengen visa in March 2008. In April, she applied for a residence permit because of family links with her daughter living in Sweden. Her application was rejected by both the Migration Board and the Migration Court. In December 2009, the applicant filed for a new residence permit, but this time based on protection grounds, as well as particularly distressing circumstances. The Migration Board decided to stay the removal order because of the alleged protection grounds which had not previously been examined.

The applicant, who was 83 years old, was of Uyghur ethnicity and stated that for this reason she had suffered life-long persecution in her native country. The applicant further alleged that because of her husband's activities and subsequent death she was at risk of persecution in Uzbekistan. Meanwhile in Sweden, the applicant showed  severe symptoms of post traumatic stress disorder and she had become severely ill with meningitis. Because of her health condition the applicant was in need of immediate access to medical care and constant support from her family, which was not available in her country of origin..

The Migration Board rejected the application as did the Migration Court. The Court did not consider that what the applicant had been a victim of in her native country was of such a nature and intensity to amount to persecution.
The Migration Court further noted that other reasons for a residence permit, such as links to Sweden or reasons of a humanitarian nature, could not be taken into consideration when applicants raised protection grounds only after a deportation order had been served.

Decision & reasoning:

On appeal to the Migration Court of Appeal the applicant stressed that it was not evident in the current legal scope of the law (chapter 12. § 19 fourth paragraph of the Aliens Act) that humanitarian circumstances could not be taken into account in the assessment. Therefore, the applicant requested a joint assessment of all the grounds where all the circumstances would be taken into account. The Migration Board however believed that the legislative background to the law only mentioned protection and not humanitarian reasons or links to Sweden. Permits based on family links, humanitarian considerations or practical impediments to enforcement after a decision on the removal had become final were regulated in a different section (chapter 12. § 18 Aliens Act). Such an examination can be made by the Migration Board under that section but may not be appealed.

The applicant’s request for an oral hearing was denied in both the Migration Court and the Migration Court of Appeal because it was considered unnecessary since the reasons for refusal were inufficiency grounds and not a lack of credibility. The Court of Appeal concurred with the Migration Court that the applicant’s alleged protection grounds were not sufficient for her to be regarded as a refugee or to qualify for subsidiary protection. The main issue the Migration Court had to deal with in its ruling was whether circumstances that can form the basis for a residence permit, but that are not based on protection needs, can be considered when an application is dealt with in accordance with Chapter 12. § 19 fourth paragraph of the Aliens Act.

Chapter 12. § 19 allows a new examination when the facts refer to the applicant's need for protection, but not when family links or reasons of a humanitarian nature claimed. According to the fourth paragraph, which is an exception to subsection one first paragraph, a person whose protection grounds have not previously been assessed has the right to lodge an application for residence as a refugee or on other protection proceedings.

The Migration Court of Appeal pointed out that the fourth paragraph was introduced in connection with when the Asylum Procedures Directive was implemented into Swedish law. The Asylum Procedures Directive concerned protection grounds only. The Court of Appeal therefore concluded that an examination of the issue of a residence permit after a final decision on removal under the Asylum Procedures Directive, as in the Swedish legislative history, was limited to the facts concerning the applicant's need for protection. The Migration Court could not therefore take up the matter of whether the applicant’s ties to Sweden or her state of health could be the basis for granting a residence permit.
 

Outcome:

The Migration Court of Appeal rejected the appeal and upheld the Migration Court's decision.