Dublin

Sweden

Author

General

Dublin statistics: 2016







Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

12,118

5,244

Total

5,582

3,306

Germany

5,156

3,668

Germany

1,911

993

Hungary

1,841

111

Denmark

774

566

Italy

1,106

292

Austria

722

448

Source: Migration Agency.

 

Application of the Dublin criteria

Sweden interprets the Dublin Regulation rules rather strictly and respects the hierarchy established by the Regulation. The Swedish Aliens Act refers to the Dublin Regulation rules but not in detail since the Regulation has direct effect is Swedish law.

All asylum seekers are fingerprinted if they are 14 years or older and checked both in the Eurodac and Visa Information System (VIS) databases. In 2016, 22,765 fingerprints were submitted and 10,991 hits were made in Eurodac and 6,673 in VIS. The top five hit countries for Eurodac were Greece, Germany, Hungary, Italy and Denmark and the top five countries of origin were Syria, Afghanistan, Iraq, Somalia followed by Stateless persons. For VIS hits, the top five applicant countries were Georgia, Iran, Syria, Iraq, and Eritrea.

There is no further information on the way the Swedish Migration Agency applies the responsibility criteria.

 

The dependent persons and discretionary clauses

As of 31 December 2016 Sweden has made use of the “dependent persons’ clause”1 and the “discretionary clauses”2 as follows: Sweden accepted responsibility under Article 16 of the Regulation for  7 cases in 2015 and 7 cases in 2016, while it has undertaken responsibility pursuant to Article 17 260 cases in 2015 and 313 in 2016.

     

Procedure

The applicant is initially informed in writing and orally that a Eurodac or a VIS hit has been registered and is given the opportunity to register any objections to being sent to the assigned country. A decision is then made to formally transfer the person and this decision is communicated in person by the Migration Agency to the applicant. The applicant has to sign that this decision has been received. The reception officer then discusses the practicalities of the transfer to the designated country and indicates how soon this could take place. If the applicant appears willing to cooperate, a date is later fixed for the transfer. If the applicant does not cooperate, then the case will be handed over to the police for an enforced transfer. A decision is also made to reduce the daily allowance to the asylum seeker because of their unwillingness to cooperate. The applicant is informed of the right to appeal in person and the right to write it in their own language if need be but also told that an appeal will not have a suspensive effect unless the Migration Court makes a different assessment.


The Migration Agency has produced information sheets in a number of languages outlining the mechanisms of the Dublin Regulation, although technical issues such as the effects of the VIS system are not easily comprehensible to asylum seekers. The asylum seeker receives a copy of these and later a copy of the acceptance by the other Member State. The asylum seeker is informed that a request is being made and about the evidence the request is based on.

 

Individualised guarantees

Following the ECtHR’s ruling in Tarakhel v Switzerland,3 the Swedish Migration Agency issued a position on the judgment in December 2014.4 The Migration Agency’s position makes a narrow reading of Tarakhel, by holding that the obligation of the sending state to seek individual guarantees from the receiving state does not apply in respect of applicants who do not belong to families with children or other vulnerable groups. Moreover, it considers that persons who already hold a residence permit in the receiving state do not enter the reception system upon return, and are therefore excluded from the scope of the ruling. The Migration Agency’s position also holds that guarantees of reception conditions need not be requested until there is a legally enforceable decision and transfer is being planned.

In January 2016 a new position of the Migration Agency followed its previous one issued in April 2015,5 relying on new information communicated by Italy to the European Commission. This position confirms the Migration Agency’s view that Italy currently fulfils the requirements of the Tarakhel ruling and that Sweden no longer needs to obtain individual guarantees before performing a transfer.6 The legal position refers among other elements to the Circular of the Italian Dublin Unit, listing the number of SPRAR accommodation places available to families with children:7

“In addition to the general guarantee, the Italian authorities provided additional guarantees along with a list of specially adapted accommodation which applicants will be placed in after a transfer to Italy. The latter guarantee has not been subject to the Migration Court of Appeal’s assessment. However, the European Court in its decision in the J. A. and others vs The Netherlands of 9 November 2015 adopted a position on the latter guarantee and the list of specially adapted accommodation and concluded that the Italian authorities' commitments are sufficient to transfer a family with children to Italy.”8

The Migration Court of Appeal had confirmed the Migration Agency’s position in a ruling of November 2015 on the same matter in a case which concerned the transfer of a family to Italy.9 The Court ruled that guarantees need not be sought in the regular procedure but only at the point where removal was possible and being planned.

 

Transfers

Most Dublin transfers take place on a voluntary basis. However, a considerable number of applicants abscond, not least unaccompanied children. Asylum applicants are not detained when they are being notified that another country is responsible for assessing their asylum application. However, Dublin cases are accommodated in lodgings that are close to an airport or moved to such accommodation in connection with the impending transfer, instead of allowing them to settle initially anywhere in Sweden.

During 2016, a total 1,007 persons were forcibly removed from Sweden to EU/EEA states according to statistics from the Swedish Prison and Probation Services (Kriminalvårdsstyrelsen). Most were sent to Italy (312) followed by Germany (231) and Spain (59). The Migration Agency notes that 913 asylum seekers were removed by the police to EU/EEA countries during the same period. Those leaving on a voluntary basis numbered 6,804.

The average processing time for all Dublin cases in 2016 was 143 days.

 

Personal interview

According to a guideline decision by the Migration Court of Appeal,10 all Dublin cases are subject to a personal interview conducted by the Migration Agency through an interpreter but without the presence of legal counsel. However, in the case of an unaccompanied child, the guardian is present and legal counsel can be appointed. The interview does not go into the asylum grounds in any detail but a brief outline of flight reasons is made in most of the interview documentation. Questions are asked about relatives in other EU countries, previous stays in EU countries, the health condition of the applicant, any objections to being sent to the responsible EU Member State, and attitude towards leaving voluntarily. A transcript of the interview is made but not normally communicated to the asylum seeker since it is only in Swedish. If there are close relatives in another EU country, Swedish authorities take no action to inform that country of the presence of a relative in Sweden, but await a request from the other country regarding the desirability of family reunification and written consent from the family present in Sweden to be reunited.

    

Appeal

In Dublin cases, there is no legal counsel automatically appointed at first instance (except for unaccompanied children), so the asylum seeker must either appeal alone or seek the support of friends or NGOs. The appeals procedure is no different from the appeal system that applies in the regular procedure.

In line with Article 27 of the Dublin III Regulation, if an applicant requests for their appeal to have suspensive effect, the Migration Agency usually suspends the transfer until the decision of the Court. Moreover, appeals in Dublin cases are often expedited quickly by the Migration Court and the Migration Court of Appeal. The appeal body does not take into account the recognition rates in the responsible member state when reviewing the Dublin decision.

The Migration Court of Appeal made a reference for a preliminary ruling to the CJEU in the case of Karim, concerning the scope of the right to an effective remedy under the Dublin Regulation.11 The referring court has asked the CJEU to clarify whether an applicant is entitled to challenge a Dublin transfer solely on the basis of systemic deficiencies or also on other grounds i.e. relating to the application of the responsibility criteria. The CJEU ruled on 7 June 2016 and found that  in order for a correct application of the responsibility determination procedure under the Dublin III Regulation to take place, the applicant must be able to contest a transfer decision and invoke an infringement of the rule set out in Article 19(2) of the Regulation, i.e. where the applicant provides evidence that he she has left the territory of one Member State, having made an application there, for at least three months and has made a new asylum application in another Member State.12

The Migration Court of Appeal decided on 24 November 2016 to refer the case back to the Migration Court for new consideration.13

Occasionally, some courts will consider the reception facilities of the destination country but this factor alone is not sufficient for the appeal to be successful.   

 

Legal assistance

The Migration Court can appoint legal counsel in Dublin appeals but does take into account whether the grounds for appeal raise issues that could lead to a change in the decision. The difficulties with regard to access to legal assistance in the regular procedure are also applicable here (see Regular Procedure: Legal Assistance).

 

Suspension of transfers

Following the M.S.S. v. Belgium and Greece ruling, all transfers to Greece are suspended where the person has not been provided with protection status there.

Sometimes, transfers can be suspended based on the individual circumstances of the case. This has been the case for certain transfers to Hungary and Italy. Sometimes this decision is made by a court otherwise by the Migration Agency as a result of a subsequent application.

To date, the Migration Agency has not suspended transfers to Hungary and still delivers Dublin decisions. In a ruling of 1 July 2016, the Migration Court of Appeal found there to be no systemic deficiencies in the Hungarian asylum or reception system, although on the facts of the case, a family with children, Sweden was nonetheless responsible given that it would be in the best interests of the children to remain in Sweden.14 In two earlier cases, however, the Migration Court of Stockholm, a lower instance to the Migration Court of Appeal, suspended transfers to Hungary on account of risks of refoulement stemming from accelerated procedures and the automatic application of the “safe third country” concept, as well as the risk of detention.15

Only 17 persons were forcibly removed from Sweden to Hungary during 2016 according to statistics from Kriminalvårdens transporttjänst. These were probably transferred before the Court of Appeal ruling. If the decisions to remove to Hungary are not carried out within six months then the case automatically becomes Sweden’s responsibility.

 

The situation of Dublin returnees

Dublin returnees with a final negative decision in Sweden can be taken into custody on arrival and measures taken to facilitate their removal. If their case is still pending in Sweden then they are placed in an accommodation centre near a point of departure. Their case will be handled in an Accelerated Procedure.

  • 1. Article 16 Dublin III Regulation.
  • 2. Article 17 Dublin III Regulation.
  • 3. ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.
  • 4. Migration Agency, Rättslig kommentar angående Europadomstolens dom i målet Tarakhel mot Schweiz, ansökan nr 29217/12, 1 December 2014, available at: http://bit.ly/1J2ijy6.
  • 5. Migration Agency, Rättslig kommentar angående Europadomstolens dom i målet Tarakhel mot Schweiz, ansökan nr 29217/12, 22/2015, cited in ECRE/ELENA, Information Note on Dublin transfers post-Tarakhel, October 2015, 13.
  • 6. Migration Agency, Rättslig kommentar angående överföring av barnfamiljer till Italien i enlighet med Dublinförordningen (EU) nr 604/2013, 1/2016, January 2016, available at: http://bit.ly/2kK2lyG.
  • 7. For more information on the Italian reception system, see AIDA, Country Report Italy: 2016 Update, February 2017, available at: http://bit.ly/2maTfMw.
  • 8. Migration Agency, Rättslig kommentar angående överföring av barnfamiljer till Italien i enlighet med Dublinförordningen (EU) nr 604/2013, 1/2016, January 2016, available at: http://bit.ly/2kK2lyG.
  • 9. Migration Court of Appeal, UM 3212-15, 26 November 2015, available at: http://bit.ly/2jQe5Pf.
  • 10. Migration Court of Appeal, UM 607-06, 22 January 2007.
  • 11. CJEU, Case C-155/15 Karim v. Migrationsverket, OJ 2015 C198/23.
  • 12. CJEU, Case C-155/15 Karim v. Migrationsverket, Judgment of 7 June 2016, available at: http://bit.ly/2kKfKa9.
  • 13. Migration Court of Appeal, MIG 2016:24, UM 6068-14, 24 November 2016, available at: http://bit.ly/2km3Qpk.
  • 14. Migration Court of Appeal, MIG 2016:16, UM 1859-16, 1 July 2016, available at: http://bit.ly/2kMY5BP.
  • 15. Migration Court, UM 587-16, 3 February 2016; UM 761-16, 2 March 2016.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti