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During the processing and examination of applications for international protection, the asylum seeker is covered by the 1994 Reception of Asylum Seekers and Others Act, which is applied by the Swedish Migration Agency.
First instance procedure: Asylum applications can only be made at designated offices of the Swedish Migration Agency, to which applicants at the airport and port are referred. There is no difference in law between making, lodging, and registering an application. The Swedish 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.
Since 2016, cases are screened and sorted in different tracks based on their specific profile during the initial process.[1] Manifestly unfounded applications, Dublin cases and applications from nationalities which have a high rate of refusal will go directly to the units that can quickly handle these cases. Other cases are forwarded to the Distribution Unit. There is no oral procedure at this stage for this category, but other procedural measures and screenings are carried out. The different tracks provide guidance on how extensive an investigation should be 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 Unit. Accommodation is offered based on the nature of a case and the goal 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.
| Track 1 | Presumed positive outcome
C permit or any other form of permit granting the right to stay where the presumption is that the case will be successful are handled within track 1. The aim is to create preconditions for rapid settlement for persons who are likely to be allowed to stay in Sweden. |
| Track 2 | Presumed negative outcome
Cases where there is no presumption of approval are handled within track 2. The aim of track 2 is to deal with cases where the outcome of the case is unclear. |
| Track 3 | Delayed case processing
Cases where the handling time will extend more than 6 months because of the complexities of the case are handled within track 3. The aim of category 3 is to deal with cases with delayed processing. |
| Track 4A | Accelerated Procedure
When there is a presumption that an application will be refused and an expulsion will take place with immediate effect or where the applicant is an EU citizen the case will be sorted under track 4 a. The purpose of Track 4A is for persons with no asylum grounds to stay as short time as possible in the reception system. |
| Track 4B | In track 4B cases are categorised based on an applicant coming from a country with a high rejection rate and where a rapid assessment procedure and return is possible. The purpose of track 4B is for persons in this category to remain as short a time as possible in the reception system. |
| Track 5A | Cases to be dealt with under the Dublin Regulation. |
| Track 5B | Admissibility Procedure: Track 5B concerns cases which can be refused because the applicant has been granted protection in another EU Member State or in Norway, Switzerland, Iceland or Liechtenstein. |
| Track 5C | Cases where an applicant can be refused because protection status has been granted in another country which is neither an EU Member State nor Norway, Switzerland, Iceland or Liechtenstein. This track is also used for cases where the applicant can be sent to a safe third country. |
The Swedish Migration Agency is responsible for examining all asylum claims at first instance but also for assessing subsequent applications concerning cases that have already been fully processed and where there is a legally enforceable removal order. In such cases, the Swedish Migration Agency determines whether new circumstances should lead to a residence permit or a re-examination of the case.
Free legal aid is granted in asylum cases, a legal counsel is appointed unless it must be assumed that there is no need for assistance.[2] In cases where an unaccompanied minor has applied for asylum a legal counsel must be appointed.[3] The applicant can request a specific lawyer on the list administered by the Swedish Migration Agency and this choice must be respected. Interpreters are available at all stages of the procedure. There is always an oral interview at the Swedish Migration Agency, whereas at the Migration Court and the Court of Appeal level an oral hearing is not mandatory but can take place on request if it facilitates decision-making or is deemed necessary in accordance with current practice as determined by the Migration Court of Appeal. In cases where the Swedish Migration Agency has denied an application for international protection with reference to the reliability of the provided information or the applicant’s credibility, there is very little room for the Migration Court to deny the applicant an oral hearing, if this has been requested.[4]
In Dublin procedures, the right to legal counsel is acknowledged at first instance for unaccompanied minors; other applicants have a right to legal assistance if exceptional grounds prevail. Such an exceptional situation could be established where the reception conditions in the receiving country are known to be poor and the principles in the European Court of Human Rights (ECtHR)’s rulings in M.S.S. v. Belgium and Greece and Tarakhel v. Switzerland apply.[5] At the appeal stage, a request for legal assistance can be made but will not automatically be approved, especially if the court deems that the appeal is unlikely to be successful.[6] However, appeals against decisions in the Dublin procedure have suspensive effect.
Some NGOs offer limited legal assistance in Dublin cases. Assistance can be provided in making appeals which are submitted in the name of the applicant. Asylum seekers are also informed by some NGOs on the right to lodge appeals themselves and make submissions in their own language.
Appeal: There are two levels of appeal. A first appeal is submitted before the Migration Court, and an onward appeal before the Migration Court of Appeal. First instance decisions must be appealed within 3 weeks, whether under the regular or the accelerated procedure. When a first instance decision is appealed, the appeal is first reconsidered by the Swedish Migration Agency. The Agency has the discretion to either change its earlier decision or confirm the rejection. In the latter case, the appeal is forwarded by the Agency, sometimes with comments, to the Migration Court within a week.
The appeal before the Migration Court has suspensive effect, except for appeals lodged against decisions rejecting a “manifestly unfounded” application in the accelerated procedure under “Track 4”. In such cases, suspensive effect must be requested by the appellant. The Migration Court sits with only one judge in simpler cases but for other cases the judge is joined by three lay judges selected from among their members by the parliamentary parties sitting in the county council of the region where the court is located.[7] They have no special legal training and represent the general public. They have varying backgrounds from many different sectors. They sit for four years. If there is a tied vote it is the opinion of the judge that decides the outcome.
The appeal process is a written procedure. The applicant has the right to request an oral hearing but this is only granted if it is deemed beneficial for the investigation or if it would result in a rapid determination of the case. If new grounds for seeking protection are presented for the first time at court level, the court may refer the case back to the Swedish Migration Agency for reconsideration. This is because applicants have the right to have their protection grounds assessed at two separate instances.
In 2023, the Migration Courts in total overturned decisions of the Swedish Migration Agency in 5% of regular asylum cases. This marks a slight decrease compared to 2022, when the Migration Courts overturned decisions of the Swedish Migration Agency in 6% of cases. This may in turn be compared to 2021, when the Migration Courts overturned decisions of the Migration Agency in 7% of cases.[8]
The applicant or the Swedish Migration Agency have three weeks from the date of the Migration Court’s decision to request leave to appeal to the Migration Court of Appeal, when there has been an oral hearing in Court, or from the date the applicant’s legal representative received the decision if not. Leave to appeal is granted if “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 there are other exceptional grounds for examining the appeal.”[9] Such exceptional reasons can exist where the Swedish Migration Agency has made a serious procedural error. Automatic free legal aid is provided for making an application for leave to appeal. If leave is granted, further legal aid is provided.
The Migration Court of Appeal is the main national source of precedent in the Swedish asylum system. Decisions by the Migration Courts are not deemed to have any special precedent-creating status, even though they may contain important legal reasoning. However, since only the Migration Court in Stockholm deals with Dublin appeals, its position on returns to certain EU countries where there are grounds to believe that due process cannot be ensured can entail a temporary halt in returns until a decision has been made by the Migration Court of Appeal on the matter.
The Migration Court of Appeal can exceptionally hold an oral hearing but in most cases, there is only a written procedure. There are no lay judges at this level.
Decisions of the Migration Court of Appeal are final and non-appealable. When the Migration Court of Appeal hands down its decision, the expulsion order is enforceable, and the rejected applicant is expected to leave Sweden voluntarily within four weeks (two weeks for manifestly unfounded claims). In certain circumstances, including cases concerning national security, such time limit can be even shorter or not given at all.[10]
In national security cases, the Swedish Migration Agency is the first instance body, and the Migration Court of Appeal provides views on the appeal, but the Government is legally responsible for the final decision. However, if the Migration Court of Appeal determines that upon return there is a risk of torture or other breaches of Article 3 of the European Convention on Human Rights (ECHR), which has been incorporated into Swedish law, the Government must abide by this opinion.
On 14 February 2020, the Migration Court of Appeal ruled in case MIG 2020:3 that a person could not be granted refugee status if the person is not present in Sweden. The case concerned an asylum seeker whose asylum application was rejected by the Swedish Migration Agency. The asylum seeker appealed the decision but then left Sweden before the case was decided.[11]
[1] Swedish Migration Agency, Rutin: Spårindela ärendet. Information in Swedish available upon request: migrationsverket@migrationsverket.se.
[2] Ch. 18, Section 1 Aliens Act.
[3] Ch. 18, Section 1 Aliens Act.
[4] Migration Court of Appeal, Decision MIG 2009:30, UM7867-08, 9 November 2009, available in Swedish at: https://bit.ly/33Z7aK1 and Migration Court of Appeal, Decision MIG 2017:9, UM 7143-16, 12 April 2017, available in Swedish at: https://bit.ly/354Hddk.
[5] ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011, available at: http://bit.ly/3R6Px5c; ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014, available at: http://bit.ly/3JtwkJd.
[6] Migration Court of Appeal, UM 5998-14 and UM 3055-14, 19 December 2014.
[7] Migration Court of Appeal, Decision MIG 2007:22, 23 May 2007, available at: http://bit.ly/3wp7Rg3.
[8] The Swedish Migration Agency, Monthly Report – December 2023, Dnr: 1.1.1.2-2023-1728.
[9] Ch. 16, Section 12 Aliens Act.
[10] Ch. 8, Section 21 Aliens Act.
[11] Migration Court of Appeal, Decision MIG 2020:3, 14 February 2020, available at: http://bit.ly/3HEvI25.