Sweden – Migration Court of Appeal, 16 September 2011, UM 4801-10

Facts:

The applicant sought asylum in Sweden on the 23rd February 2009. As grounds for the application he stated that his computer had been seized by the Iranian authorities. In the computer was a website for people who had converted from Islam in which he was also registered. The applicant stated however that he had not converted, nor intended to do so because he was not a believer. As a result of the confiscation of his computer the applicant said that he had been suspended from his university. Since his arrival in Sweden, the applicant had been active in an association for ex-Muslims in Scandinavia. He had also participated in activities and protests against the Iranian regime, organised by the opposition groups. The applicant was an active member of the Iranian Workers Communist Party of Sweden and he had, inter alia, expressed his views in a speech at the Civic Square (Medborgarplatsen) in Stockholm. A cousin of the applicant’s had seen films of the demonstrations on free TV channels in Iran. As proof of his political involvement in Sweden, the applicant submitted various articles and DVDs.

Decision & reasoning:

The Migration Board rejected the applicant's asylum application and decided that the applicant would not run any risk as a convert in Iran solely on the grounds that his computer contained information on different religions. When it came to the applicant's dissident activity in Sweden, the Migration Board said that it was not likely that the authorities in Iran were aware of this or would have knowledge of it.

The applicant appealed the Migration Board’s refusal and added that his former girlfriend in Iran had been told by the security police to break off contact with the applicant. The applicant's parents and his new girlfriend's parents had been summoned for interrogation during which the Iranian authorities described the political activities the two conducted in Sweden. The Migration Court held a hearing and found that the applicant had never been politically active in Iran, nor put forward his political views, even to his closest friends. That the authorities knew of his political activities in Sweden, as argued by the applicant, could be because they had noticed him in the demonstrations, through his photo on the ex-Muslim website, or because they saw him on a Kurdish television station where he twice appeared in picture. In one of the broadcasts the applicant was shown with his name and picture and the words "political activist" when he made speeches on behalf of the party.

The applicant further submitted that his new girlfriend was also politically active. Her ex-husband had belonged to the party before and had acted as a spy for the Iranian authorities. The applicant's girlfriend testified at the immigration court and stated that her former husband informed the Iranian authorities about the applicant and others who had been active in the party and that he was the subject of investigation by SAPO, the Swedish security police.

The Migration Court dismissed the appeal. They concurred with the Migration Board's assessment that the material that allegedly had been on the applicant's computer when it was seized could only be considered political activity at a low level. When it came to the applicant's political activities in Sweden, the Court held that there was no reason to doubt that the applicant had been politically active as he had stated, but that this activity was not sufficient for the applicant to be considered in need of protection. Crucial to the assessment, according to the Migration Court, was whether the Iranian authorities had become aware of the applicant's activities and if so, whether he risked being subjected on return to treatment that would qualify him for protection. Since the Migration Court judged that the applicant's activities occurred at a low level and that country of origin information stated that the Iranian authorities are not interested in people who have been active at low levels and there was nothing to suggest that the authorities had become aware of the applicant's activities, they felt that he had not shown it likely that he was entitled to a residence permit in Sweden. Information about the applicant's girlfriend's former husband was considered vague and questionable.

In his appeal to the Migration Court of Appeal the applicant challenged the court’s assessment of the Iranian authorities' interest in people who were politically active at a low level. He pointed out at the same time that his own commitment, as proved by submitted photos, certificates and film material, could not be considered to have occurred at a low level. Instead, the applicant stated that he had been politically active at a level that made him very much of interest to the home country’s authorities.

The Migration Court of Appeal agreed with the assessment made in the earlier decisions of the applicant's claim. The Migration Court of Appeal focused mainly on the issue of whether the applicant had a right of residence as a refugee or a person in need of subsidiary protection as a result of "sur place" activities in Sweden.

The court stated that an examination of whether there are any protection needs arising from "sur place" activities must be made in light of all the circumstances of the case. The principle of “sur place” grounds is not explicitly stated in the Aliens Act. However, the preparatory works note that the “sur place” principle is part of Swedish practice. The court noted that the principles in Art 5.2 of the Qualification Directive apply and must guide national interpretation.

In assessing the applicant's need for protection under Art 5.2 of the Qualification Directive particular emphasis was placed on whether the political activity in Sweden was the expression and continuation of convictions or orientations already held at home. Since the applicant was not engaged in any political activity in Iran and had not told other people about his political beliefs, the Migration Court of Appeal held that there was no support for his actions to be seen as a continuation of the opinions he had already held in Iran.

It was found that this does not, however, preclude the applicant from being entitled to international protection as a result of the activities he engaged in in Sweden as an asylum seeker. According to the UNHCR Handbook, this assessment can be made through a careful examination of the circumstances of each case. In this assessment particular account should be taken of whether the authorities of the home country have become aware of the documents and of how they will be perceived by the authorities.

The Migration Court of Appeal agreed with the Migration Court that there was no reason to doubt that the applicant had been politically engaged in the manner and in the context he stated. The question which the court had to decide was whether the applicant's political activities in Sweden had been of a kind and on a scale that they were of interest to the Iranian authorities. The Migration Court of Appeal found, based on country of origin information (UK Operational Guidance Note October 2010 section 3.7, especially sections 3.7.15-17) that it was normally not sufficient that an Iranian, with no known political profile, participating in demonstrations and other political activities against the Iranian regime abroad, would qualify as a refugee or for subsidiary protection “sur place”. The Migration Court of Appeal deemed that the nature and extent of the applicant's political activities in Sweden were not sufficient for him to be considered a refugee or in need of subsidiary protection.

For this reason the Migration Court of Appeal lacked reason to make a special review of whether the applicant's activities in Sweden were already, or might become, known to the Iranian authorities.

Outcome:

The Migration Court of Appeal rejected the appeal and confirmed the order of expulsion.

Observations/comments:

The more cautionary position of the Migration Board of July 2011 which was made known before this case was decided at the Court of Appeal was unfortunately not presented to the Court either by the Migration Board or by legal counsel (lifos.migrationsverket.se 2011-07-11 RCI 21/2011). In it's “sur place” reasoning the Migration Board pointed out that belonging to a targeted group (of which internet critics were one) would require a lower level of proof given the activities of the Iranian regime in monitoring these groups.

Other sources:

Bill 2009/10:31 p 132 Implementation of the Qualification directive and the Asylum Procedure Directive (Genomförande av skyddsgrundsdirektivet och asylprocedursdirektivet) Gerhard Wikrén and Håkan Sandesjö, Utlänningslagen med kommentarer, 9th edition p 159 f., “A Commentary of the Aliens Act.”