Sweden - Migration Court of Appeal, 9 December 2013, UM 1412-13, MIG 2013:23

Facts:

The asylum seeker A, and her six children, all minors except for the oldest, B, sought asylum in Sweden in 2012.

When their applications were registered, it emerged that they had already been granted an Italian Schengen visa. The Swedish Migration Board therefore requested that Italy assume responsibility in accordance with the Dublin Regulation. The relevant authority in Italy accepted the Swedish Migration Board's request. The Board therefore decided, amongst other things, to transfer them to Italy in accordance with the Dublin Regulation.

The asylum seekers appealed against the decision by the Swedish Migration Board to the Migration Court in Stockholm, which decided to return the case to the Swedish Migration Board for further examination, as the latter, before making its decision, had not assured itself that the Applicants were not at risk of being sent on from Italy to Syria. The mere fact that Italy, by signing international conventions, has stated that it will comply with the principle of non-refoulement could not been seen as sufficient to gain assurance that the Applicants would be protected from being sent on to Syria were they to be transferred to Italy. Further investigation in the case was required to gain assurance that Sweden was complying with its obligations under the European Convention on Human Rights and with the principle of non-refoulement.

After the date of the judgment by the Migration Court, A's spouse, who was also the children's father, C, sought asylum in Sweden.

The Swedish Migration Board appealed against the Migration Court's judgment to the Migration Court of Appeal.

The Swedish Migration Board said that, in this case, there were no reports suggesting systematic deficiencies in the asylum procedure in Italy and referred to the decision by the European Court of Human Rights in the case Mohammed Hussein and Others v. the Netherlands and Italy, in which the Court said that the general situation facing asylum seekers in Italy, despite some minor deficiencies, did not display any systemic deficiencies. The Swedish Migration Board therefore found no rebuttal of the presumption that all Member States were living up to their undertakings under EU law.

In this case, the mother and children, except for the two now adult children, B and D, must be considered family members, within the meaning of the Dublin Regulation. According to the Swedish Migration Board, however, no article in the Regulation directly obliges Sweden to examine all family members' asylum applications. The Swedish Migration Board pointed out in particular that the parents, A and C, had opted not to have all family members' applications examined in Italy, under Article 15(1) of the Dublin Regulation, to avoid the family being split up. This must be taken into account in an assessment of the right to a family life protected under Article 8 of the European Convention on Human Rights. The Swedish Migration Board furthermore noted that the right to a family life under Article 8 of the European Convention on Human Rights did not necessarily entail a right to a family life specifically in Sweden. The son B was already 18 by the date of the asylum application and thus an adult and could not be seen as a family member within the meaning of the Dublin Regulation.

The Applicants said that, in Italy, they were at genuine risk of inhuman and degrading treatment due to systemic deficiencies in the asylum and reception procedures there. There were no guarantees that they would not be sent onwards from Italy to Syria. Transfer under the Dublin Regulation would furthermore result in the family being split up, and that risk alone constituted sufficient grounds for Sweden to assume responsibility for the family's asylum applications.

Decision & reasoning:

The Migration Court of Appeal has previously said that it must be presumed that all EU Member States both can and will comply with EU rules.

The Migration Court of Appeal found that the Swedish Migration Board could not be made subject to such an extensive investigatory obligation that, ex officio,it must gain assurance that the asylum seeker is not at risk of being sent on to his home country from a state that is responsible for examining his asylum application under the Dublin Regulation, before the Board orders a transfer under the Regulation.

The situation is different in relation to generally known criticism of how a Member State complies with prevailing EU law. In those cases, it is primarily a matter for EU institutions to follow up this matter, but this cannot mean that Sweden is failing in its obligations under the European Convention on Human Rights or that the provisions of the Foreigners Act are not being complied with.

The Migration Court of Appeal found no evidence to rebut the presumption that Italy is complying with its international obligations and has a legally secure asylum system. Transfer under the Dublin Regulation did not therefore breach the Foreigners Act or Article 3 of the European Convention on Human Rights.

The Migration Court of Appeal then addressed the question of whether transfer under the Dublin Regulation was compatible with the principle of the right to respect for family life.

The most extensive protection for the family is found in Article 8 of the European Convention on Human Rights. According to the European Convention on Human Rights, spouses and their minor children are first of all counted as family, but related individuals outside the family unit can fall to a certain extent within the scope of these provisions too, e.g. cohabiting individuals and adult children can sometimes be considered family members.

The principle of right to respect for family life, according to the Migration Court of Appeal, thus primarily covers family units, comprising married spouses and their minor children, but can be applied also to other situations. The adult children, B and D, are now 21 and 18. No evidence has been produced to counter the assertion that the now adult children lived together with the rest of the family in their home country and that they still live together. Thus, they are covered by the protection afforded family life, like the other family members.

Enforcement of the Swedish Migration Board's decision to transfer the family to Italy for their asylum applications to be examined there, whilst the spouse's/father's asylum applications are due to be examined in Sweden, must be viewed as entailing a breach of the family members' right to respect for family life.

As the possibility cannot be excluded that Italian or, as the case may be, Swedish authorities will conclude differently regarding the family members' need for international protection, transfer to Italy could lead to the family being split up, in any case temporarily.

Sweden must therefore assume the responsibility for examining all of the family members' asylum applications under Article 3(2) of the Dublin Regulation.

Outcome:

Sweden must therefore assume the responsibility for examining all of the family members' asylum applications under Article 3(2) of the Dublin Regulation.

Other sources:

Statens offentliga utredningar(Swedish Government Official Reports) 2006:61

Wikrén and Sandesjö, Utlänningslagen med kommentarer (The Foreigners Act and Commentary), 9th edition, 2010

Bohlin & Wamling-Nerep, Förvaltningsrättens grunder(Basis for Administrative Law), 2nd edition, 2007

Reichel, God förvaltning i EU och i Sverige (Good Administration in the EU and in Sweden), 2006