Sweden - Migration Court, 14 June 2011, UM 21121-10

Facts:

The applicant sought asylum in Sweden on the 19th September 2009. In Iraq the applicant worked as a General in the military, as a consultant to the Defence Minister and as the secretary of Saddam Hussein's Council for the Development of Military Forces along with Saddam Hussein, his son and the Defence Minister. The applicant claimed that he was arrested in 2005 and subjected to beatings. During 2006 the applicant claimed he was targeted twice with attempted murder by gunfire and explosions. The applicant was also told by a neighbour that the people who were persecuting him were also planning to kidnap the applicant’s children. The applicant feared being killed if returned to Iraq because of his previous position in the military and as one of Saddam Hussein's closest men.

Decision & reasoning:

The Migration Board found that the applicant did not have an internal flight alternative nor could he receive  protection from the authorities. The Migration Board believed that the applicant, on the basis of his actual and/or imputed political opinion, was at risk of persecution. However, the Migration Board considered that the applicant could not have been unaware of the serious human rights violations committed by Saddam Hussein's regime and that therefore there were serious reasons to believe that the applicant had committed offences that excluded him from refugee status. The Migration Board rejected the applicant's asylum application and made a decision to deport him. However, the Migration Board granted the applicant a temporary residence permit for one year because of impediments to enforcement which were deemed to be present in the applicant's case.

The applicant appealed to the Migration Court. He argued that in his work as an advisor to the Defence Minister he had not made decisions, but only provided information and advice. The Migration Court concurred with the Migration Board that the applicant had such a prominent role in the Saddam Hussein regime that he would risk persecution on return. The question to be examined by the Court was whether there were exceptional grounds to believe that the applicant was guilty of such crimes that he should be excluded from being considered a refugee.The Court underlined that exclusion grounds should be applied restrictively and that high standards of proof were required.The Migration Court referred to two judgments of the European Court of Justice (Germany v B and D (Case 57/09 and Case 101/09)) which stated that it should not automatically be assumed that there are serious reasons to believe a person has committed a serious non-political crime or acts in violation of the purpose and principles of the United Nations because that person belonged to an organisation on the so-called list of terrorist organisations, and because the person in question had actively supported the organisation's armed struggle. The European Court of Justice pointed out that the individual circumstances of each case must be examined for an individual to be found individually responsible for the execution of such acts. The Migration Court stated that the Migration Board only referred to the applicant's position in the Saddam regime as a basis for exclusion.

The Court found that the acts committed by this regime were such that they met the conditions for exclusion from refugee status but did not consider the evidence before the Court was sufficient to hold the applicant individually responsible for such acts.

Outcome:

The Migration Court overturned the Migration Board's decision and granted the applicant permanent residence and refugee status.