The Migration Agency’s organization is headed by a Director General and consists of an operational unit, divided into six regions, a quality assurance department, a head office and several independent functions. Decisions are made on work permits, family reunification, adoption, studies, citizenship and asylum. The Migration Agency also operates detention centres. A law or political science degree is generally required to work on asylum cases. There is a special national unit for dealing with Dublin cases.
The average handling time for cases at first instance is 328 days or 10.5 months as of December 2016.1 Applications from unaccompanied minors have not been processed as rapidly as previously and had an average handling time of 353 days as of December 2016. For other categories of asylum seekers, it takes on average 343 days for a first decision. For appeal cases, it is 5.6 months or 169 days.
The Migration Agency reached its highest number of asylum decisions in 2016, with a total 111,979 first instance decisions taken on applications. The Agency aims to clear the backlog of longstanding claims waiting for a decision no later than the summer of 2017.2 The total number of persons granted permits in 2016 was 67,258. Of these, 45,862 were granted permanent residence permits, 4,931 were granted 3-year permits and 14,504 were granted temporary permits. 1,961 persons were granted permits on other grounds and 1,808 persons had their applications rejected as manifestly unfounded (of which 1,979 from the Western Balkan countries).3
Since the summer of 2015, however, through the introduction of a procedure whereby identification documents of asylum seekers are transferred to a special national unit of the Migration Agency to be examined for authenticity before an initial decision is taken on the application, further delays have resulted for those who have handed in ID-documents. To shorten delays, there are staff at the regional level who make a more cursory examination of documents and hand over more complicated assessments to the national level.
The Migration Agency has been testing a new way of organising the flow of cases during 2016 in response to a government order to show how processing times can be shortened.4
organising the flow of cases as a result of the government’s request to spped up the process. This model is now in the process of being conformed and generalised in the administration.
The Migration Agency states that the protection process consists of three parts: (1) initial, (2) appeal and (3) enforcement processes. It runs from the application for asylum to the decision being enforced either by settlement or return.
During the initial process, cases are screened and sorted in different tracks based on their specific profile.5 Manifestly unfounded applications, Dublin cases and cases with a high percentage of rejections go directly to the units that can quickly handle these cases. Other cases are forwarded to the distribution centre. There is no oral procedure at this stage for this category but other procedural measures and screening are carried out. The different tracks provide guidance on how extensive an investigation is required in an individual case and thus create an efficient flow. A steady flow of cases during the determination process is assured when units request cases from the distribution centre. Accommodation is offered based on the nature of a case and the ambition is to avoid unnecessary secondary movements. Consideration is given to individual needs. All information and case handling measures under the protection assessment are adapted to the track concerned.
For a matter to be dealt with in the track 1 the following conditions must be met:
(a) There is a presumption that the claim will be successful;
(b) There is no need to appoint public counsel;
(c) The identity of the claimant has been ascertained based on the documents submitted;
(d) No other major processing steps are needed other than an oral interview.
Cases that require more processing steps or more extensive oral investigation than the cases handled in the first track. For the case to be dealt with in the track 2 one of the following conditions must be met:
(a) There is a presumption that the claim will be successful but the applicant has not submitted any identity documents or made his or her identity likely through the documents submitted;
(b) The applicant on initial assessment has established his or her identity but there is no presumption of a successful claim and public counsel needs to be appointed.
Cases in which the need for comprehensive investigation measures is identified. As far as possible, measures should be taken before the oral asylum investigation to prevent long delays. There is no presumption of a successful claim in these cases and there is a need to appoint public counsel. The following cases shall be dealt with in Track 3:
(a) Cases where exclusion grounds are raised;
(b) Cases of potential security risks;
(c) Cases where there is a suspicion of false identity;
(d) Cases where the need for language analysis exists;
(e) Cases where the issue of enforcement is complicated;
(f) Unaccompanied minors where the issue of orderly reception requires extensive investigative measures;
(g) Unaccompanied minors where medical age assessment is needed;
(h) Cases where there are indications of human trafficking;
(i) Cases where there are indications of honour-based violence and oppression;
(j) Cases involving the revoking of a residence permit or status declaration.
Cases where an application for asylum is considered to be potentially manifestly unfounded. These cases are identified in the initial process and are handed to the home country return process. Cases in this category must not be forward to the distribution function. Even cases involving unaccompanied minors with potentially manifestly unfounded cases, where the question of adequate reception in the home country is not problematic, can be dealt with in this track.
Cases involving foreigners seeking protection from countries with generally high rejection rates, where rapid enforcement is possible and the matter does not require extensive processing steps.
Cases to be dealt with under the Dublin Regulation. These cases are identified in the initial process and handed over to the Dublin Units. Matters to be dealt with in Track 5 should not be sent to the distribution unit. Cases of unaccompanied minors where there is a ‘category-1 hit’ in Eurodac will also be sorted into Track 5 and managed by the Dublin Units.
Cases in which the application may be rejected in accordance with Chapter 5, Section 1b(1)-(2) of the Aliens Act shall be dealt with by the Dublin Unit and sorted into the track 5 if: (a) the applicant has been granted protection status in another EU country; or (b) the applicant has been granted protection status in a non- EU country, but where the Dublin Regulation applies (Norway, Iceland, Switzerland).
Due to the Act 2016:752 concerning temporary restrictions on the ability to obtain a residence permit in Sweden, the protection process needs to be expanded with a sixth track. In Track 6, cases where the extension of the previous permit is requested are dealt with (see Residence Permit). This track also includes the extension of the temporary residence permit granted under the Aliens Act.
In track 7 cases of Relocation to or from Sweden will be dealt with. A standard procedure for resettlement to Sweden from Italy and Greece has been drawn up but not implemented in the procedure yet.
As outlined in Regular Procedure: General, the Migration Agency has outlined a tracks policy for different types of caseloads. Track 1 concerns cases where:
There is a presumption that the claim will be successful;
There is no need to appoint public counsel;
The identity of the claimant has been ascertained based on the documents submitted;
No other major processing steps are needed other than an oral interview.
Swedish legislation and regulations allow for a personal interview in all asylum cases. All interviews, whether within the ambit of the regular or accelerated procedure, are carried out by the authority that is responsible for taking decisions on the asylum applications. These are carried out by officers of the Migration Agency and are divided into two phases. A reception officer interviews the applicant regarding personal details, health, family and general background and can also request that any supporting documents be provided. The asylum case officer carries out an interview to establish the basis of the claim in the presence of a legal representative, an interpreter and the asylum seeker. However, in the new procedure at first instance, legal counsel is requested to hand in a summary of the case in advance of the interview for Track 3 cases (see Regular Procedure: General) to give more time for the case officer to focus at the interview on core issues of the claim.6 This new role has been criticised by the Bar Association since legal counsel is expected to carry out part of the task of the case officer7
While video interviews are increasingly conducted, they remain a rare practice applied only if the applicant is residing at long distance from the Migration Agency’s designated interview office. The interview may be audiotaped by the asylum case officer but this is not mandatory. Since the asylum case officer only makes a recording for the purpose of double-checking the notes taken during the interview, the audio-recording is not considered formally part of the processing of the asylum application and therefore the permission of the asylum seeker is not required before a recording is made. For that reason, the tape is not made accessible to legal counsel or the applicant, although changes are currently being discussed with a view to making official recordings available to counsel.8 Legal counsel and/or the applicant can record the interview themselves with their own recording devices but there are no statistics that show how often this occurs.
Almost verbatim notes are taken and the transcript is made available to the applicant through the legal counsel to comment on and add to before a decision is made in the case.9 A specific date is given by the Board, usually one to two weeks for when these comments and additional information have to be submitted. They are often appended to or included in the written appeal.
The applicant may request an interpreter and counsel of the same gender. The Migration Agency is not legally bound to provide this but does its best to accommodate these requests.10 If the interpreter is lacking the necessary skills and this becomes apparent during the interview the case worker can abort the interview and rearrange for another time with a competent interpreter. In practice, if there is a clear problem with interpretation during the interview, then the asylum seeker can point to it and have the interview discontinued. In that case, a competent interpreter will be engaged on the next occasion. It is not possible for the authorities to select interpreters sharing the same religious belief as an applicant because it is forbidden in Sweden to register a person’s faith. This means that the level of trust in the interpreter can vary and that sensitive issues may be avoided by the applicant. In the case of converts to Christianity, for instance, there is great sensitivity on this issue and a lack of knowledge of the relevant vocabulary has been noted by the authorities. Word lists have been prepared by the Swedish Christian Council that are awaiting funding to be translated to the most relevant languages. In the area of LGBTI applications, the Migration Agency has arranged seminars for interpreters to standardise terminology.
Only translators authorised by the Legal, Financial and Administrative Services Agency (Kammarkollegiet) have the right to describe themselves as authorised translators. Authorisation is awarded after a demanding written examination, consisting of texts on legal, economic and general topics. Authorised translators are required to observe high professional standards, which include maintaining confidentiality and only taking on assignments they are capable of completing in a satisfactory manner. Likewise, only interpreters authorised by the Legal, Financial and Administrative Services Agency may refer to themselves as authorised interpreters. To obtain authorisation, interpreters have to show in written and oral examinations that they have a good command of both Swedish and the other language concerned, as well as the necessary interpreting skills. They must also have a basic understanding of areas such as social services and social security, health care, employment and general law, and of the terminology used in these fields.
The Migration Agency is however not obliged to use authorised legal interpreters. However, the Courts do rely on authorised legal interpreters to a larger extent, but they are not always available with regard to certain languages. There is a general code of conduct for interpreters issued by Kammarkollegiet in Stockholm and last updated in December 2016.11 All companies stress that they follow the basic principles and respect the rules on confidentiality.
However, in asylum interviews, when applicants recount the core events in their applications, interpreters seldom give a verbatim account of what is said. At worst this can lead to an assessment by the case worker that the applicant has been vague in the account of events and therefore less credible. The onus is on legal counsel to expand on clipped translations when making the submission after examining the transcript of the interview. The applicant may well have provided a detailed account in his or her own language but it is only what is interpreted that makes its way into the official transcript.
There are two levels of appeal in Sweden: The first level consists of four Migration Courts (Migrationsdomstol) and the second is the Migration Court of Appeal (Migrationsöverdomstol).
The Migration Court procedures
A refusal decision by the Migration Agency can be appealed before the Migration Court and has suspensive effect under the regular procedure.12 In manifestly unfounded cases, the appeal also has suspensive effect as of 1 January 2017 if this is requested by the applicant and until the court decides thereon.13
Appeals are made to the four Migration Courts in Stockholm, Luleå, Malmö and Gothenburg. Appeals can be made both in relation to facts and/or points of law. The asylum seeker has three weeks after having been informed of the first instance decision to lodge an appeal.14 The decision is communicated in writing to the asylum seeker by a staff member of the Migration Agency’s nearest reception centre with the assistance of an interpreter, often available by telephone, in a language understood by the applicant. It is the duty of the legal representative to contact their client to submit an appeal and examine the refusal decision. However, an asylum seeker can also refrain from appealing the decision by signing an appropriate form and withdrawing the claim.
An appeal can be lodged by the applicant in their own language, with some indication in Swedish or English – for practical reasons – as to the nature of the reasons for appeal. In a regular procedure an appeal is lodged in Swedish by the appointed lawyer but where no legal assistance is available the Migration Agency has a responsibility to ascertain the general content of a submission in a language other than Swedish and its relevance as a basis of an appeal. This does not mean that all the contents need to be translated in detail before a decision can be made. The appeal is formally addressed to the Migration Court but is sent first to the Migration Agency, which has the legal right to review its decision based on any new evidence presented. If the Migration Agency does not change its decision, the appeal is forwarded to the Migration Court which can independently decide if further translation is necessary.
Oral hearings at the Migration Court are not mandatory but can be requested by the asylum seeker. A decision has to be made by the judge on the matter of an oral hearing before the case is examined by the court. Where the court refuses an oral hearing, the applicant is given a set date by which the appeal must be completed. The four courts vary in the extent to which oral hearings are granted. In 2016, the national total was 2,577 out of 8,262 cases. Malmö granted oral hearings in 492 cases (39.4%), Gothenburg in 502 cases (38.3%) Luleå in 154 cases (14.5%) and Stockholm 929 cases (20%).
An oral hearing may be open to the public initially but, before the proceedings start, the judge inquires about the applicant’s wishes in this respect and makes a decision accordingly. The judge may, however, outweigh the wishes of the applicant and declare that the hearing be video recorded e.g. in cases of national security.
Decisions are published but formulated in a way as to minimise any harm to the applicant. Names can be omitted on request and certain parts of the testimony can be declared confidential and therefore not be included in the final decision. The Courts' decisions are not available online. However, upon request, the general public has access to all decisions in paper or electronic version.
Asylum seekers in the regular procedure have free legal aid and are usually called to a meeting with the lawyer to prepare the appeal to the Migration Court. The reasons for the first instance rejection are explained and the applicant has an opportunity to provide new evidence or arguments to support his or her case. An interpreter is available at this meeting. On rare occasions, legal counsel may fail to submit the appeal in time and this means the case cannot continue. However, there is a mechanism whereby an appeal can be made to have the late submission accepted by the court. The outcome of such an appeal depends on whether there are any extenuating circumstances e.g. in the event of serious illness or death of the applicant’s legal counsel. If all the elements of the appeal cannot be submitted within the 3-week period when an appeal has to be lodged, the legal counsel can ask for an extension to complete the appeal. This is often granted. If the applicant wants an oral hearing at court, this has to be specifically requested. When this is done and the request is refused, however, the applicant is not always informed by counsel that the request has been turned down and can live in hope that he or she will be able to put forward their case in court.
The Migration Court of Appeal procedures
“Leave to appeal to the Migration Court of Appeal is issued if:
(1) it is of importance for the guidance of the application of the law that the appeal is examined by the Migration Court of Appeal or
(2) there are other exceptional grounds for examining the appeal.”15
In general administrative procedure law, there is a further ground for leave to appeal “if reason exists for an amendment of the conclusion made by the county administrative court”.16 However, this ground does not apply to the Aliens Act. Leave is only granted where an appeal may be of importance as a precedent, or if there are exceptional reasons, such as a serious procedural error made by the Migration Agency.
The applicant and the Migration Agency have 3 weeks to appeal to the Migration Court of Appeal after the delivery of the Migration Court’s decision to the applicant.17 Decisions of the Migration Court of Appeal are final and non-appealable.
The Migration Court of Appeal is the main source of jurisprudence in the Swedish asylum system. Decisions by the Migration Courts are not deemed to set precedent, even though they may contain important legal reasoning.
The Migration Court of Appeal can exceptionally hold an oral hearing but in most cases there is only a written procedure. Decisions on leave to appeal are taken by one or, in in exceptional cases, three judges. There are no lay judges at the Migration Appeal Court; it only comprises qualified judges. If leave to appeal is granted, a decision is taken by three judges, while exceptionally important cases are decided by a panel of seven judges.
Free legal aid is provided for public counsel to make an application for leave to appeal. If leave is granted, then further legal aid is provided. Until a decision on leave to appeal is handed down, the appeal has suspensive effect.18 If leave is refused, the expulsion order is legally enforceable.
By the end of December 2016, 6,375 appeals were made to the Migration Court of Appeal, out of which 5,925 were decided upon. Only 31 cases were given leave to appeal (0.5% of applications).
When the Migration Court of Appeal hands down its decision, the expulsion order is enforceable and the person is expected to leave Sweden voluntarily within two weeks in a manifestly unfounded case or four weeks in regular procedure cases.
In national security cases, where the asylum seeker is considered as a potential threat to national security, the Migration Agency is the first instance and the Migration Court of Appeal provides views on the appeal, but the Government is legally responsible for the final decision.19 However if the Migration Court of Appeal determines that there is a risk of torture or other breaches of Article 3 ECHR, which has been incorporated into Swedish law, then the Government has to abide by this opinion.20
Free legal assistance is provided to asylum seekers throughout the regular procedure and at all appeal levels and is funded by state budget. However, in Dublin cases and manifestly unfounded applications normally no free legal assistance is provided at first instance but can be requested at the second instance.21 The legal representative is assigned and designated by the Migration Agency, unless the asylum applicant asks for a specific lawyer. The criteria for the appointment of legal counsel take into consideration whether the counsel is located close to the office responsible for handling the case. Because of the large increase in asylum seekers in 2015, public counsel was not appointed very early in the case as previously and interviews have taken place after many months of waiting. In most instances when counsel is appointed, they can meet the client before the asylum interview takes place but it still happens that the first meeting is at the oral interview.
At the preparatory meeting, the lawyer should inquire briefly as to the substance of the claim and ask for any substantiating documents as well as provide the asylum seeker with advice on the asylum procedure. In certain cases, (see Regular Procedure: Personal Interview) the public counsel is expected to hand in a summary of the case and formal grounds for the claim before the interview. The legal counsel then attends the oral interview and subsequently makes a submission which incorporates any views on the oral transcript and any supplementary information counsel wishes to refer to in relation to the substance of the case.
It is difficult for the lawyers to know in advance the exact number of hours of work out of those they have requested payment for they will be paid for by the authorities. Their fee can be reduced by a decision of the Migration Agency or at a later stage by the Court. These decisions can be appealed separately by legal counsel. On average, 10-15 hours of work are usually approved at the first instance for regular asylum cases and any hours beyond those have to be carefully motivated based on the exceptional nature of the case. Interpretation costs are reimbursed separately, along with other necessary expenses. Lawyers do not get paid for investigating country of origin information.
Other areas of legal practice are often better remunerated than asylum cases. Currently, the fees for asylum cases are €141.60 an hour (1,342 SEK). At the Court level, the legal costs are higher if there is an oral hearing compared to a mere written procedure.
There are no special requirements for lawyers with regard to their knowledge of asylum and migration law. It is sufficient that they have a law degree in order for them to be appointed. The Migration Agency maintains a list of persons who have registered to be legal counsel in asylum and migration cases and distributes cases according to their availability. There are no requirements on legal counsel to pass any tests in this area of law and this means there can be an uneven level of competence which in individual cases can be to the detriment of the asylum seeker's protection grounds. The asylum seeker has the right to complain if the appointed legal counsel does not fulfil his or her duties and to request a new lawyer. However, this is rarely granted. Lawyers have to have seriously breached their professional duties to be removed from a case e.g. drunken behaviour or other gross misconduct not directly related to the handling of the substance of the case. Migration law is not very prestigious in the legal profession but initiatives have been taken at the Universities of Uppsala and Lund to give training to students at doctoral level in this field who will monitor and analyse current Swedish practice and developments in international law.
- 1. Migration Agency, Statistics on Asylum decisions: December 2016, available at: http://bit.ly/2jxHBIG.
- 2. Migration Agency, ‘Highest number of asylum decisions to date’, 17 January 2017, available at: http://bit.ly/2jQ3RhM.
- 3. Migration Agency, Annual Report 2016, available at: http://bit.ly/2mcqzEV.
- 4. See Swedish National Financial Management Authority, Regleringsbrev för budgetåret 2016 avseende Migrationsverket, 17 December 2015, available in Swedish at: http://goo.gl/Kvt5rD.
- 5. Migration Agency, Skyddsprocess, 1.4.3 – 2016-193808. The draft was shared with stakeholders on 21 December 2016.
- 6. Migration Agency, Skyddsprocess, 1.4.3 – 2016-193808. The draft was shared with stakeholders on 21 December 2016.
- 7. Sveriges Advokatsamfund, ‘Migrationsverkets nya arbetssätt: Anders Danielsson svarar Advokatsamfundet’, August 2016, available in Swedish at: http://bit.ly/2laGhQ2.
- 8. Information provided by the Migration Agency, 2015.
- 9. The Migration Agency has introduced quality assurance procedures that retroactively require an analysis of how a case has been handled from various perspectives. This includes methods of promoting a learning organisation and check-lists have been introduced covering many issues. The team the case officer belongs to examines quality assessment reports on a regular basis and the team-leader has the responsibility for establishing and developing good practice: Information provided by the Migration Agency, 2015.
- 10. Note that Article 15(2)(c) recast Asylum Procedures Directive introduces that obligation “wherever possible”.
- 11. Kammarkollegiet, Kammarkollegiets tolkföreskrifter, KAMFS 2016:4, 13 December 2016, available in Swedish at: http://bit.ly/2jODxHx.
- 12. Ch. 12, Section 10 Aliens Act.
- 13. Ch. 12, Section 8a Aliens Act.
- 14. Ch. 23 Section 2 Administrative Law (Förvaltningslagen).
- 15. Ch. 16, Section 12 Aliens Act.
- 16. Section 34a(2) Administrative Court Procedure Act (1971:291).
- 17. Ch. 16, Section 10 Aliens Act.
- 18. Ch. 16, Section 10 Aliens Act.
- 19. Ch. 2a, Special Control of Aliens Act (Lagen om särskild utlänningskontroll) 1991:572.
- 20. Ch. 10, Special Control of Aliens Act.
- 21. There is a right to free legal assistance if a person is detained for more than 3 days as a measure related to expulsion or transfer. Also, certain vulnerable asylum seekers (deaf and mute for example) can be granted free legal assistance.