Sweden - Migration Court of Appeal, 9 October 2009, UM 5814-08
Keywords:
| Keywords |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
Headnote:
Social exclusion can be considered as "exceptionally distressing circumstances" and thus grounds for a residence permit.
Facts:
The applicants are a young woman and her 2½ year old son. The woman is single and left Egypt when she became pregnant, where she had lived since the age of ten. Her son was born in Sweden. She was treated for tuberculosis in Sweden and her son received preventive treatment. The Migration Boards did not find her eligible for asylum or to have any other reasons to be granted a residence permit. The Migration Court on the other hand found that the circumstances of the case were such that they fell within the scope of Chapter 5 Section 6 on exceptionally distressing circumstances. The applicants were thus granted permanent residence permits. The Migration Board appealed the case.
Decision & reasoning:
The Migration Court of Appeal did not find the applicants eligible for protection either as refugees or for subsidiary protection (Aliens Act Chapter 4 Sections 1-2, as before 1 January 2010).
Regarding the assessment of circumstances related to “exceptionally distressing circumstances” as expressed in Chapter 5 Section 6 the Court established that the threshold is set lower for children but that that the provision still should be interpreted in a restrictive manner. The Court then went on to conclude that neither the health conditions of the applicants, nor their adaptation to Sweden are per se such strong circumstances that they could motivate a residence permit.
The situation for women in Sudan is however very difficult. As an unmarried mother one risks corporal punishment. Human rights violations are common. Single unmarried mothers in particular need social networks in order to survive and be protected. The applicants have no natural ties to Sudan and no social structures to step into. The Court therefore decided that considering the risk of social exclusion expulsion appears impossible from a humanitarian point of view. The applicants were thus granted residence permits based on Chapter 5 Section 6.
Outcome:
The Migration Court judgment was confirmed.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Sweden - MIG 2007:12 |
| Sweden - MIG 2007:15 |
| Sweden - MIG 2007:33 I |
| Sweden - MIG 2007:33 II |
| Sweden - MIG 2007:43 |