Sweden - Migration Court of Appeal, 5 March 2018, UM2630-17
Keywords:
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The Appellant and the appellant’s children were applying for leave to remain in Sweden due to affiliation with their husband and father respectively who had been granted a permanent right of residency in Sweden as a refugee - despite them not being able to prove their identities. Due to the appellant’s lack of relevant documentation for her and the children, the court had to consider the circumstances in which a person can be granted alleviation of evidentiary burden in terms of proving their identity.
The Migration Court of Appeal granted the appeal and held that the appellant and the children would be granted an alleviation of evidentiary burden. It further referred the case back to the Swedish Migration Agency who would have to complete a DNA-test aimed at establishing the kinship of the family and subsequently try the case again.
Facts:
The Appellant and her four children, all Eritrean citizens who at the time of the application resided and were registered as refugees in Ethiopia, applied for a right of residence in Sweden in 2015. Their application was based on their affiliation to their husband and father respectively (also an Eritrean citizen) who had been granted a permanent right of residency in Sweden as a refugee.
In order to be granted a right of residency based on affiliation an applicant must, among other things, be able to prove their identity. However the appellant did not have the necessary documentation for herself nor the children.
The appellant argued that she and the children should be granted an alleviation of evidentiary burden in terms of their identification given the risks involved in obtaining an Eritrean passport for any person who has left the country illegally. The relevant issues and risks related to the family obtaining Eritrean passports that was brought to the attention of the court included:
i) Since there was no Eritrean Consulate/Embassy in Ethiopia the family would have to embark on a long and dangerous journey to the Sudanese capital of Khartoum in order to get the passport issued.
ii) the appellant and the children would have to have paid a 2% tax to the Eritrean state before receiving their passports, money which would be used for political purposes.
iii) The family would have to sign a ‘letter of regret’ where they accept punishment for not having completed their military service.
iv) the family would have to make the Eritrean state aware of their illegal exit which would put their relatives still living in the country at risk of victimisation.
Decision & reasoning:
The Migration Court of Appeal reaffirmed the following:
In order for an alien to be granted a right of residency due to affiliation, the alien in question must as a general rule be able to prove their identity. However, in some cases where the applicant originates from a state with no - or poorly functioning - government structures it can be enough for the alien to make his or her identity ‘credible’. This alleviation of evidentiary burden presupposes the existence of a DNA-test that supports
i) the applicants parenthood to the children he or she has with the affiliated person
ii) that the affiliated person is the other parent of the children
In addition to the above it has to be established that the two parents have lived in a joint household before the person of affiliation came to Sweden. Furthermore the interest of the person of affiliation to be reunited with his or her family must be weighed against society’s interest to prove the applicant’s identity (which includes issues of security and need to control immigration) – this is a test of proportionality.
The court held that it was indisputable that the appellant was married to the affiliated person, that they had lived in a joint household before coming to Sweden and that they were the parents of the four children.
The court further held that it would be disproportionate for the court to require the appellant and the children to obtain Eritrean passports from an Eritrean Consulate/Embassy abroad given the risks this would pose to the applicant, the children and their relatives in Eritrea.
As a result, the court held that the appellant and the children would enjoy an alleviation of evidentiary burden in regards of their identities and that it would fall upon the Swedish Migration Agency to complete a DNA analysis on the family’s kinship.
Outcome:
Appeal Granted. The Migration Court of Appeal revoked the decision of the Migration Court in full except for their decision regarding the secrecy of the applicant’s, children’s and person of affiliation’s identity. Furthermore the court referred the case back to the Migration Agency for a new trial of the right of residency.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - 5 kap. 3 § första stýcket 1 och 2 a samt 8 § utlänningslagen (2005:716) |
Cited Cases:
| Cited Cases |
| ECtHR - Tanda-Muzinga v. France, Application No 2260/10 (UP) |
| ECtHR - Berisha v. Switzerland, Application no. 948/12 |
| ECtHR – Mugenzi v. France, Application No. 52701/09 |
Other sources:
- Lifos,’ Temarapport Eritrea – Familjemedlemmars kontakt med eritreanska beskickningar i utlandet’, 16th of may 2017, p. 10 and 16
-UNSC Prop. 2005/06:72 p. 68
- Letter on the 3d of April 2014 from the Commission to the European Council with guidelines of the implementation of directive 2003/86/EG, (COM [2014] 210 final)