INTRODUCTION
First of all I think it´s necessary to
explain briefly how the Swedish courts deal with asylum and immigration
cases. Since the 31st of March 2006 these cases are decided in court if
appealed. Before that time they were decided in the Immigration
Authority and if appealed in the Alien Appeals Board. Now the first
level is still the Immigration Authority, the next level is one of three
Administrative courts (Stockholm, Gothenburg or Malmö) with special
divisions for Immigration cases (called the Immigration Court) and the
third and last level is the Administrative Court of Appeal in Stockholm
with a division called the Supreme Court of Immigration. In the last
instance the applicant has to be granted a leave to appeal and that is
only granted if it is a case of importance to create precedence
(jurisprudence).
During slightly more than a year we have
granted permission in about 100 cases and we have given judgements in
about 50 cases so far. Many of the cases deal with the legal procedure,
for example that one of the parties has not been properly informed, that
an oral hearing has not taken place though it should have, the question
of legal aid etc. In these cases if the court has failed to follow the
legal procedure the judgement often is to send the case back to the
Immigration Court for a new trial.
Since the purpose is to point
out the most relevant and problematic issues concerning asylum and
immigration in the domestic case-law it would be of interest to mention
some of the areas in which we have given judgements during 2006 and 2007
so far.
FAMILY REUNIFICATION
An area in which we have
frequently made judgements in the Supreme Court of Immigration is the
question of family reunification (Council directive 2003/86/EC of 22
September 2003). One case (MIG 2007:19) dealt with the following
questions.
A woman had applied to reunify with her husband who
was living in Sweden. The question was if it was a pro forma marriage
(fake marriage). The court stated that the woman had not entirely of
free will entered to this marriage and that her husband was living
together with another woman at the time of the marriage and also after
the marriage. There was however no question about that they were legally
married at the time of application. The burden of proof that it might
be a pro forma marriage lies on the state. In this case the court found
that it was not proved. However, the fact that the man had been living
together with another woman before and after the marriage had not been
told by him during the investigation and the court found that this was a
lie of such importance that the woman did not have the right to reunify
with the husband in Sweden.
In another interesting case (MIG 2007:14) the following question arose.
Is
the right for a child to reunify with it´s parents living in Sweden
applicable for a person over 18 years but incapacitated in his home
country. The court made a comparison with the Directive and found that
this was not possible.
Another question that arises often is when a
near relative applies to reunify with a relative living in Sweden. The
rule is that he/she has to prove that they had a common household in the
home country and that there was a special dependency between them in
the home country. Some of the cases have dealt with the question whether
the applicant has to go back to his home country to make the
application (if he/she already is in Sweden).
In one case (UM 137-06
Judgement 070424) the question was if it is reasonable to claim that
the applicant who was married to a Swedish woman should go back to his
home country and make the application from there when the risk was that
he had to do his military service for about 15 months when he returned.
There was also a risk that he might be put in prison because he ran away
from the military service. With reference to reports from the British
Home Office the court found that he only risked prison for about 4-6
months. The court found that the above mentioned circumstances where not
enough reason to make an assumption from the main rule. Some of the
cases have dealt about the question whether the applicant and the near
relative have had the special dependency between them (MIG 2007:1,
Judgement 2007-04-19 Målnr 721-06) that is required.
DUBLIN REGULATION
The
Dublin Convention in relation to Denmark has also been a matter for
some cases. In one case (målnr 716-06, Judgement 2007-03-05) the
question was if the fact that the woman was afraid to return to Denmark
since her husband had assaulted her and her daughter was enough reason
for Sweden to try her asylum application instead of Denmark where she
first made her application. The answer to that question is no. In the
Dublin Regulation no. 343/2003 Article 18(1) there is a time limit of
two months for the “first” country to answer if they accept a request
from e.g. Sweden to take over the responsibility of an application.
In
another case (målnr UM 93-06, Judgement 070514) the situation was the
following. Italy had not answered within the time limit and according to
Article 18(7) and 25(1)(a) they are considered to have accepted. The
time limit for transferring the applicant to Italy is six months and
starts after these two months. The question was if this time limit for
six months had passed. The court decided that this was not the case
since the court had for the time being cancelled the lower courts
decision within the time limit of six months.
SUR PLACE CLAIMS
The
questions about “sur place” reasons to stay have also been the subject
of a judgement (MIG 2007:20). In this case the court pointed out the
importance of secrecy about sensitive information in the judgement, but
that at the same time it is necessary to fully describe the reasons for
the decision.
The court pointed out that in a case like this it
is important to keep the name of the applicant secret. Since that was
not the case the court had to find out if that lead to sur place reasons
to stay. Since political activities of that persons were well known in
the home country even before the court delivered its judgement where his
name was made public, it was not considered that he had sur place
reasons to stay in Sweden.
BENEFIT OF THE DOUBT, CREDIBILITY ASSESSMENT AND BURDEN OF PROOF
The
rule of “benefit of the doubt” has come up in one case so far (MIG
2007:12, Judgement 070319 målnr UM 540-06). The general principle is
that the refugee has the burden of proof for his/her need of protection.
The court referred to the Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees and made it clear that the
burden of proof can not be put too high. Nevertheless his/her story has
to be credible and likely. When the court forms the opinion about if the
person is trustworthy or not, it normally pays attention to if the
story is coherent and is not characterised by contradictory information.
It is also important that the information is not in contradiction with
commonly known facts about the country and that the story in its
fundamental features has not changed in the different instances. The
court drew up some lines in this case about in which order to consider
the different questions. First the court has to form an opinion of if
the applicant has made his/her identity and citizenship likely. Secondly
it has to form an opinion about the claimed need of protection. That
question is divided into two questions. The first question is if the
circumstances that the refugee refers to are enough to constitute
protection reasons and secondly if the refugee has made his/her story
credible either by proof or by being considered credible and therefore
gained the “benefit of the doubt” position.
The general
principle is that an asylum seeker has a burden of proof for
establishment of his/her identity and citizenship. However, there are
some issues in connection to this which creates problems that we would
like to mention and we expect that there are similar problems in most of
the countries:
When the origin of the applicant has not been
proved the Immigration Authority often orders a language analyst that
until now has been anonymous (because of the threat that the analyst
might feel from the person being analysed). None of the parties in
court, nor the court itself knows what qualifications this language
analyst has or the content of questions he/she may have put to the
applicant in order to find out if he/she knows about the country
concerned. Recently the Supreme Court of Immigration is going to decide
if this is a proof of any value and if this procedure is consistent with
the protection of the rights of the applicant.
If the citizenship
of the applicant is known, he/she has to present the information about
why he/she is a refugee. When it comes to personal causes he/she has to
prove that and when it comes to information about the situation in the
country both parties have to present their evidences. But also the court
has a certain obligation to investigate. That can be a problem because
it is unclear how much information the court itself can look for
regarding international reports about that particular country.
REFUGEES FROM IRAQ
Another
problematic issue that we would like to mention is the problem that
Sweden faces about 150 refugees from Iraq every day. A study that was
made by the Immigration Authority in Sweden says that Sweden alone has
granted permissions for applicants from Iraq to stay in our country in
80 % of the cases while other countries have a much lower figure. This
caused Sweden great practical problems to find places for these people
to stay and these people have to stay in refugee camps for a much longer
time than is intended.
Another problem in connection to this is
that refugees - children - are coming alone to Sweden. The amount of
these children increases constantly. These children also have to stay in
the camps for a much longer time than is appropriate. Furthermore, it
affects the time required for processing the application. For us in
Sweden it seems rather strange that when applying the same international
convention the results are so different between Sweden and the rest of
the Europe.
Another problem is the increasing number of children who
have been brought into the country as the biological children of an
adult applicant who later turns out not to be the biological children of
these persons. Many problems arise in connection to this issue.
Sometimes the real parents turn up later or the children are not
properly cared for.