Regular procedure

Author

Swedish Refugee Law Center Visit Website

General (scope, time limits)

The legal provisions that regulate the regular asylum procedure at the national level are primarily governed by “Utlänningslagen” (Aliens Act), specifically its provisions related to asylum. Additionally, the “Förvaltningslagen” (Administrative Procedure Act) and the “Förvaltningsprocesslagen” (Administrative Court Procedure Act) play a role in outlining the procedures and legal framework for asylum cases.

The average length of the asylum procedure (i.e., for all tracks) had significantly decreased from 507 days in 2018 to 288 days 2019. In 2020, the asylum procedure increased to total of 302 days, but decreased again to 256 days in 2021. For 2022, the number decreased to 166 days. In 2023, the average length increased to 198 days meaning it is higher than 2022 but still not as high as it was in 2021.

Source: Swedish Migration Agency, Monthly Statistical Report December 2023.

The increase of the average length of the procedure in 2020 is due inter alia to the impact of COVID-19. The Swedish Migration Agency suspended most of its interviews for a two-week period in March 2020.[1] The Swedish Migration Agency increased its capacity to conduct interviews remotely via video and the interview rooms were equipped with protective equipment during the summer.[2] The average length of the procedure decreased in 2022. A total of 1,620 out of 13,252 asylum investigations were conducted by video by the Migration Agency during 2022.[3] .In 2023, 690 out of a total of 8,969 interviews were conducted by video.[4] There is a slight change in the average length, but it is too early to say if we will start seeing an increase in average time or if it will stay somewhere between 5.5 – 6.5 months. The Migration Agency aims for a process time of six months. During 2023, the Migration Agency started working with a scheduled process. Essentially, the approach entails minimizing the lead time, which is the time between various processing actions taken in the individual case. This means that the Migration Agency will schedule an investigation session with the applicant and as soon as possible after the application. The goal is to conduct the asylum investigation within 5 to 14 working days from the application, but no later than within four weeks. Thereafter, the lawyer must submit a written submission, which must be received no later than 14 days after the asylum investigation has been completed. To meet the time prescribed by regulation, the asylum processing units may need to become more restrictive in granting extensions.[5]

The Swedish Migration Agency decided on 44,156 applications for international protection in 2022. This included 14,245 decisions on new applications and 29,911 prolongation decisions where renewal of a temporary protection permit was requested.[6] The backlog of pending cases increased from 5,906 at the end of 2021 to 9,096 at the end of 2022. In 2023, the backlog was 5,229 cases for first time applicants and 19,811 for prolongation decisions for renewal of a temporary protection permit. The Swedish Migration Agency decided on 83,281 applications of international protection in 2023 – 15,904 of these are first time applications and 67,377 are prolongation decisions where renewal of a temporary protection permit was requested. This is a difference of 39,125 cases. In 2023, the Swedish Migration Agency received 11,401 first time applications and 66,623 prolongation decisions for renewal of a temporary protection permit.[7] The huge difference in applications for prolongation decisions for renewal of a temporary protection permit is likely due to people from Ukraine having had to renew their resident permits in accordance with the Temporary Protection Directive (see Annex on temporary protection).

The time limit for the Swedish Migration Agency to make a decision on an asylum application is 6 months from the date the application is received. However, in exceptional circumstances, the time limit can be extended with up to an additional 9 months.[8] If the Swedish Migration Agency does not respect the time limit for a decision, the applicant can make a complaint to the Parliamentary Ombudsmen (JO), which could result in criticism of the Swedish Migration Agency. Additionally, the applicant has the option to request the Swedish Migration Agency to make a decision even after the time limit has expired. Other than this there are no consequences for not respecting the time limits.

According to The Swedish Refugee Law Center, significant differences exist between the asylum assessment units of the Swedish Migration Agency with regards to approval rates and grant reasons. Although caution should be exercised when interpreting the statistics, as the analysis is based on a limited number of decisions (98), it is noteworthy that Stockholm approved asylum in 85% of Afghan asylum cases in the summer of 2022, while the overall approval rate in Gothenburg was only 28% during the same period.[9] No new updated data has been retrieved but the Swedish Migration Agency updated their assessment of the security situation in Afghanistan the 6^th of December 2022, effectively granting all women and girls from Afghanistan refugee status.[10] This will most likely lessen the differences between the approval rates.

Prioritised examination and fast-track processing (“Track 1”)

As outlined in the Short overview of the asylum procedure, the Migration Agency introduced a tracks policy in 2016 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.

The purpose of the track is to create conditions for rapid settlement for individuals likely to be granted permission to stay in Sweden. There is a presumption for approval when the Migration Agency assesses that everyone coming from a specific country, a specific region, or everyone belonging to a certain group is generally in need of protection.[11]

In 2020, 841 applications were assigned to Track 1. A total of 1,497 decisions were delivered and 303 cases were open at the end of the year.[12] In 2021, the number of applications assigned to Track 1 increased to 897. A total of 858 decisions were delivered and 342 cases were open at the end of the year.[13] In 2022, the number of applications assigned to Track 1 increased to 1,319. A total of 1,107 decisions were delivered and 594 cases were open at the end of the year.[14] In 2023, a total of 1,192 cases were assigned to Track 1 and 1,322 decisions were taken. The Swedish Migration Agency had 444 cases still open at the end of the year.[15]

Personal interview

Swedish legislation and regulations allow for a personal interview in all asylum cases.[16] All interviews, whether in 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 Swedish 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. These interviews are not held at the same time. The interview regarding the applicant’s personal details such as health and general background usually takes place at the time of application.

All asylum seekers have the possibility to undergo a health screening, which the majority choose to do in practice.[17] This is particularly crucial for survivors of torture and traumatized individuals. However, due to confidentiality rules, this information is not automatically available to caseworkers. Legal counsel, however, can request access to this information from the health care with the applicant’s permission.

As part of the mentioned routine, all Migration Agency staff are obligated to report vulnerabilities in an official note, which is then input into a common database. The note specifies at which stage in the procedure the vulnerability is observed and outlines the measures that have resulted from it. It is emphasized that a vulnerability assessment must always be conducted in the initial process.

Some special needs may not be registered in an official note, such as when the Migration Agency notifies the need for a guardian or informs a municipality that an unaccompanied child needs protection. Additionally, the Migration Agency’s responses to applicants who have requested a case officer, interpreter, or public counsel of a specific gender may not be officially noted.

The interview regarding the grounds for asylum is held later in the presence of a legal representative. As a general rule, all family members are interviewed separately. Children have the right to have their asylum claims examined individually and not just as part of their parents’ cases. The child has a right to be heard, but no obligation. In order for the Migration Agency to be able to hold an investigative interview with a child, the child must want to talk to the Migration Agency themselves. Children are asked if they want to talk to the case officer and if the child wants this to happen without the presence of the parents/legal guardians. It is also required that the parents/guardians have given their consent for the Swedish Migration Agency to talk to the child.

When the child’s grounds for asylum are investigated, the Migration Agency’s caseworkers should, as much as possible, tailor the investigation to the child’s age, maturity, and health. The child has the right to have an adult accompanying them during the investigation. This can be a parent, another guardian, a legal representative, and/or a public counsel.

Even if an individual interview is held with children, a child-focused conversation is always held with the parents about the individual child.

A decision on the merits is taken by two persons: the case officer and a decision maker. The difference between the two is that the case officer is responsible for the management of the case, which include administrative tasks, conducting the interview and writing a proposed decision. The decision maker has regular contact with the case officer, but will, in the end, have the final word regarding the assessment of the application and the decision.

Credibility assessments are of great importance in the asylum procedure. The Swedish Refugee Law Center carried out a study in 2019 that examined which indicators are used by the Migration Agency in credibility assessments for decisions where the application has been rejected. The study covered 90 decisions from four different regions in Sweden and was based on a handbook published by the Department of Psychology at Gothenburg University. This handbook looks at how to assess credibility in asylum cases, i.e. by identifying suitable indicators to that end. [18]

The level of detail and consistency were found to be the two most common indicators and were categorised as suitable credibility indicators in the handbook. However, other less suitable indicators seemed to be also common, such as the reasonableness of the story. The study further identified three indicators that are not mentioned in the handbook but are quite frequently used by the Migration Agency: speculations, hearsay and lack of subjective fear. These indicators have in common that they do not have any scientific support for them being suitable to use in credibility assessments.[19]

It is also possible to conduct interviews over video. It seems that remote interview techniques have not raised particular issues.[20] In the rare cases where issues with videoconferencing were reported, it related to the fact that some difficulties arise if the interpreter is not in the same room as the applicant or if the interpreter is not visible by not using the video-function, or that it is difficult to appropriately communicate feelings such as fear of being subject to persecution and that it might be difficult to accurately assess credibility through remote interview techniques. Applicants have not expressed particular complaints regarding remote interviews. However, in some instances the legal representative has participated by phone, which works less smoothly. Overall, it seems crucial that the applicant and their legal representative can see and hear each other well during interviews.[21]

The Migration Agency have confirmed that conducting interviews by video is not a new procedure, that is has been conducted for several years for certain types of cases and that it works well.[22] The Migration Agency also stated that online interviews allow for respect of legal safeguards equally as physical meetings do.[23] These have mainly been conducted with applicants who lived far from the investigation location in order to minimize costs and time for the applicant. In other cases, the applicant has special needs that make an investigation via video link more suitable based on those needs. During the pandemic the need for investigations via video link increased, but with a shortage of sufficient rooms, not all investigations were conducted in this way. There may also be cases where a video investigation is less suitable. Communication can be limited in video investigations, which can create misunderstandings and frustration among those present. This should be particularly considered in cases where the applicant has special needs. Examples of circumstances that may make video investigations less suitable are when those being investigated are traumatized, have a hearing or visual impairment, where difficult and complicated events need to be clarified, or where there has previously been an issue with interpretation. A started interpretation assignment that proves not to be optimal or suitable for the specific investigation situation can be cancelled and rebooked, usually for a physical investigation.

Interpretation

The applicant may request an interpreter and interviewer of a certain gender.[24] The Migration Agency shall accommodate these requests if possible.[25] If the interpreter is lacking the necessary skills and this becomes apparent during the interview the case worker can close 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 and/or legal representative 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.

The government decided on 14 March 2019 to expand their annual directives to the Migration Agency by requesting them to assure legal quality and uniform application in asylum cases where religious conviction is a basis for the claim. In the agreement between the parties in the new government and the Sweden Democrats, the Tidö Agreement, it is stated that a review of the asylum process will be conducted with the aim of enhancing its quality, consistency, and legal certainty. The review shall among other things look at criteria for legal representatives, interpreters and lay judges and the assessment of conversion and LGBTQI+ cases.[26] On 14 December 2023, the Government commissioned the Swedish Agency for Public Management (Statskontoret) to conduct a review of the asylum process with the aim of strengthening quality, uniformity and legal certainty. The review will include cases involving converts and LGBTQI people, as well as other asylum cases. The assignment must be reported to the Government Offices (Ministry of Justice) no later than 7 October 2024. The Government has also looked at the question about legal representatives and found that there should be heightened eligibility requirements for public counsel in the migration process, a general declaration of ineligibility for unsuitable representatives and, in cases where the individual is entitled to public counsel, if possible, an authorized interpreter should be used during oral proceedings, and an authorized translator for the translation of documents. We still do not know when these changes will take effect.[27]

In 2020, the Agency also analysed cases concerning Afghans, which is a category of cases where claims based on religion occur, that had been overturned in the courts in 2019. The Agency found that the proportion of cases overturned were not remarkably high, namely 10% compared to 8% in other cases. Out of the cases that were changed by the courts, the courts had made a different assessment of whether the person had a genuine religious belief or atheist conviction in 17% of the cases. The Migration Agency mentions that conversion is a process that takes place over time and that persons could therefore have a stronger religious belief during the court process than during the first instance procedure. However, the Migration Agency also carried out a mapping based on automated searches in their case handling system on cases concerning conversion and atheism. It showed that the term conversion was present in about 10% of the cases. The mapping further demonstrated regional differences in the level of cases granted, varying between 18% and 33%. There was also a regional difference in the courts, varying between 2% and 15% of the appeals being successful. The Migration Agency acknowledged that, based on this mapping, there seems to be a lack of uniformity on cases concerning conversion of religion.[28] In 2021, the Migration Agency noted that decisions in cases concerning Afghan nationals were subsequently overturned by the courts more often than for other first-time applications (on average below 10%).[29]

Only translators authorised by the Legal, Financial and Administrative Services Agency (Kammarkollegiet) have the right to designate 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.[30]

The Migration Agency is 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 in certain languages. There is a general code of conduct for interpreters issued by Kammarkollegiet in Stockholm and last updated in June 2021.[31] All companies stress that they follow the basic principles and respect the rules on confidentiality.

In 2018, the Migration Agency issued a guidance note to its staff regarding levels of competence necessary for different interpretation tasks. The government also commissioned a wider report on interpretation services which put forward a number of proposals.[32] A number of strategic goals for society’s provision of interpreters can be formulated as medium-term goals of around five years:

• The State funds fewer educational pathways for interpreters but increases the total capacity. Volume and orientation are coordinated in relation to state authorisation of interpreters, with a basic requirement for training and workplace learning.
• The State keeps a register of authorised and trained interpreters. This forms the basis of future public sector interpreting services.
• A new interpreting services act is introduced, and the use of children as interpreters is prohibited and replaced with the use of professional interpreters. Regulatory frameworks, quality assurance and supervision of interpreters and intermediary bodies are developed.
• The public sector plans for the long term, collaborates, coordinates and uses existing interpreting resources more flexibly and effectively. An increasing share of resources is used to finance core interpreting activities, i.e., interpreting services.
• Quality-assured interpreters are offered public assignments through the State’s coordinated commissioning. Authority requirements are matched against the quality of services delivered.
• The State and public sector build up their own interpreting resources where appropriate, or agree on guaranteed services. Cost increases for the public sector are held back but quality and societal benefits increase.
• The interpreting profession is valued and professionalised, which in the long term also leads to more traditional partnerships, a better work environment, higher employment rates and more labour market stability for interpreters.

However, in asylum interviews, when applicants recount the core events in their applications, interpreters occasionally fail to give a detailed 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 the 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 their own language, but it is only what is interpreted that makes its way into the official transcript.

Recording and transcript

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. 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, and there has also been situations where interpreters have refused the legal counsel and/or applicant to record the interview.[33]

Almost verbatim notes are taken of the interpreter’s translation 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.[34] A specific date is given by the Migration Agency, usually two weeks from the asylum investigation, by when comments and additional information must be submitted. If the time limit set by the Migration Agency is not enough because of different circumstances, like for example difficulties with booking an interpreter in a specific language, there is a possibility to ask for an extension. But depending on the reason why an extension is needed, it could be more difficult to be granted an extension because the Migration Agency aims for a process time of six months.[35] Previously, the deadline started from the moment the protocol was communicated with the legal representative, which often occurred several days after the asylum investigation had been conducted. The time limit starting before the legal representative has received the protocol and it being more difficult to be granted an extension has led to the Bar Association to write to the Migration Agency and ask them to take immediate action to improve the current unsustainable situation.[36]

Video interviews can be conducted when the applicant is residing a long distance from the Migration Agency’s designated interview office.

Appeal

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 (Migrationsöverdomstolen).

Appeal before the Migration Court

A refusal decision by the Migration Agency can be appealed before the Migration Court and this appeal has suspensive effect under the regular procedure.[37] 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.[38] The written decision is communicated orally 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 regarding the decision and to submit an appeal against the refusal decision if the client so requests. This duty is not laid down in law and there are no legal sanctions against the legal representative if the deadline is missed. The Swedish Bar Association can issue disciplinary sanctions against a legal representative if they are a member of the Bar. 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 applicants 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.[39] This does not mean that all the content needs to be translated in detail before a decision can be made.

There is a secure online portal through which relevant documents can be submitted and files are kept.[40] It is the lawyer’s responsibility to ensure pleadings and appeals are submitted on time. The applicant does not have access to the portal, however if they wish to access the documents, they can ask their lawyer or the Migration Agency. The Migration Agency will either send the documents by mail or hand them over the counter in one of the Migration Agency’s offices.

The appeal is formally addressed to the Migration Court but is first sent to the Migration Agency, which has the legal obligation to review its decision based on any new evidence presented.[41] In 2020 and 2021, respectively, the Migration Agency changed its initial decision in one case out of 15,299 decided cases in 2020 and 12,793 in 2021.[42] In 2022, the Migration Agency changed its initial decision in two cases (out of 8,036 cases).[43] In 2023, the Migration Agency changed its decision in one case out of 9,585 cases. This demonstrates that the Migration Agency almost never changes its initial position. When the Migration Agency does not change its decision, the appeal is forwarded to the Migration Court. In 2023, the Migration Agency took an average of four days to either make a decision on reconsideration or transfer the appeal to the Migration Court.[44] In 2021, a total of 9,695 cases were forwarded to the Migration Courts.[45] In 2022, the total number of forwarded asylum cases was 7,855.[46]And in 2023 this increased to 9,469 cases being forwarded to the Migration Court.[47]

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. In 2023, the prevalence of oral hearings varied significantly across the migration courts. The most cases held with oral hearings were conducted in Malmö (30,1%%), followed by Luleå (25%), Gothenburg (13,8%) and Stockholm (13,8%).[48] For 2022, the largest proportion was in Malmö (33.6%), followed by Luleå (22.7%), Stockholm (19.6%) and Gothenburg (18.7%).[49]

In 2023, 1,245 cases where oral hearings had been held were concluded in the Migration Courts. This is close to how many were held in 2022, with a difference of 145 oral hearings. An oral hearing may be open to the public initially but, before the proceedings start, the judge enquires about the applicant’s wishes regarding confidentiality and decides accordingly. If the court finds indications for confidentiality in the case before the oral hearing, it can choose to keep the name of the appellant confidential, and the name will then not appear on screens in the courthouse or be mentioned when the court calls on the hearing to start. This can for example be the case when the case contains sensitive information or if the appellant comes from a country that is suspected of tracking information about refugees from that country. The judge may, however, override the wishes of the applicant and declare that the hearing be video recorded e.g., in cases of national security.

The average processing time for the Migration Courts to adjudicate a case in 2023 was 11,5 months, which is an increase from 9,5 months in 2022. The Migration Courts changed 9,6% of the appealed asylum cases in 2022 and in 2023 this number decreased to 7,9%.[51] In 2022, the National Audit Office published a report on processing times of asylum cases in migration courts. They found that the times were long and had increased since 2016. The report showed notable regional differences and that half of the processing time did not include any active processing of the case. One reason for the waiting time was the waiting period for oral hearings. The main reason for the delays were concluded to be lack of funding. On 26 July 2022, the Ministry of Justice welcomed the report and conveyed that a series of measures were taken to shorten the processing time.[52] It is notable that the processing time still increased in 2023.

Court rulings are publicly available. The rulings can be accessed either directly from the Court upon request, in paper or electronically, or via legal information databases (subject to a licence/subscription). In order to not reveal sensitive information about an applicant, the Court can decide that the name of the applicant and/or certain parts of the ruling shall be kept confidential.

Asylum seekers in the regular procedure have access to 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 their case. An interpreter financed by the state is available at this meeting. On rare occasions, legal counsel may fail to submit the appeal in time, and this means the case is abandoned.[53]

However, there is a mechanism whereby an appeal can be made to have the late submission accepted by the court.[54] The outcome of such an appeal depends on whether there are any extenuating circumstances e.g., in the event of the 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.[55] When this is done and if the request is refused, a date is set for the completion of the submission and any arguments that would have been presented in a court appearance can be submitted in writing.[56] There are no statutory deadlines during the actual proceedings. Administrative courts can decide for themselves which time limits should apply to, for example, requests for deferrals. Usually, this deadline is a few weeks.

Onward appeal before the Migration Court of Appeal

“Leave to appeal to the Migration Court of Appeal is issued 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.”[57]

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”.[58] 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 or the Migration Court.

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.[59] 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 two or, 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.[60] If leave is refused, the expulsion order is legally enforceable from the date of refusal.

In 2023 a total of 5,293 appeals were made to the Migration Court of Appeal in asylum cases and the latter decided upon 5,231 cases:

Source: The total number of appeals and decisions in asylum cases (målkategori Avlägsnandemål asyl), is provided by the National Courts Authority. Information concerning leave to appeal, appeals accepted, rejected and referred back is from the Migration Agency’s Monthly statistical report for December 2023.

The discrepancies in the above table between the total number of appeals lodged and the number of decisions is due to the fact that certain decisions were issued on appeals of the previous year. 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.[61] 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.[62]

In February 2022, the Migration Court of Appeal ruled that, in cases where a family member presents new grounds for asylum during the proceedings in the Migration Court, the starting point should be that the family must be kept together; thus, the assessment as to all family members’ right to reside in Sweden should be kept together as well, as the right of one family member may affect that of others. So, if the Migration Court decides to refer one family member’s case back to the Migration Agency for further examination, the other family members’ cases should be referred back as well. Otherwise, a situation could arise where parts of the family would have enforceable expulsion decisions when another family member’s new grounds for asylum are being assessed.[63]

In November 2022, the Migration Court of Appeal ruled in case MIG 2022:9 and expressed that the principle of family unit does not include a separate right to refugee status for a family member of a refugee if the family member lacks individual protection grounds.

Legal assistance

Free legal assistance is provided to asylum seekers throughout the regular procedure and at all appeal levels and is funded by state budget.[64] The only times where the right to legal assistance is conditional are in cases concerning appeal of the Migration Agency’s decision regarding proclamation of protected status and a decision not to grant a re-examination of a subsequent application. The conditions are then that the person must be in Sweden and that it is not obvious that the appeal does not have a reasonable prospect of success. When the application is presumed to be granted, it is often determined that no legal assistance is needed and hence will not be provided.[65]

The legal representative is assigned and designated by the Migration Agency or the respective court; where applicable the asylum seeker can ask for a specific person to be designated, a request which is normally granted. 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, but this is not an absolute criterion if the applicant has requested a specific lawyer. According to a ruling of the Migration Court of Appeal, the choice of lawyer by the applicant must be respected even if the lawyer is located at a distance or is not available at the preferred time of the Migration Agency for an interview.[66]

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. 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 lawyer to know in advance exactly how many hours of work a case will require and also how many of those hours of work will be monetarily compensated 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 the 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 must 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 approximately €130 an hour (SEK 1,476, not including VAT).[67] At the Court level, the legal costs are higher if there is an oral hearing compared to a mere written procedure, but the hourly fee remains the same.

There are no special requirements for lawyers with regard to their knowledge of asylum and migration law. The Parliamentary Ombudsman (JO) has stated in a decision that the Migration Agency is responsible for ensuring that the legal counsel is sufficiently competent for the task in hand. In practice, it can be argued that it is sufficient that they have a law degree in order for them to be appointed by the Migration Agency or the courts. The JO has also declared that the Migration Agency should have a system where it monitors and documents the skills and/or deficiencies of legal counsel. The previous system – the keeping of a “black list” – was deemed not to meet legal standards.[68] Several documents were issued and initiatives raised[69] but nothing was considered when the Alien Act and related legislative acts were amended in July 2021.[70] In a report in June 2022, the Swedish National Audit Office identified problems in the system regarding public counsels in migration cases, including that some persons had been able to continue working as public counsels after having being convicted of serious offences or having been disbarred.[71] Following this, the Government initiated an inquiry to examine certain aspects regarding public counsels. The inquiry presented its findings and proposals on 1 June 2023.[72] Some of the inquiries proposals were that only those with a law degree or an equivalent older degree may be considered for appointments as a public counsel in migration cases; If a public counsel is deemed unsuitable for their assignment, the Migration Agency or the Police Authority (a decision by the Police Authority may only apply to matters under the Aliens Act) declare them ineligible to act as a representative or assistant at the authority, either for a certain period or indefinitely; Tighter regulations regarding substitutions for all public counsels and a new purpose provision shall be introduced in the Immigration Data Act (2016:27), explicitly stating that the Migration Agency and the Police Authority may process personal data if necessary for assessing individuals’ suitability for a public counsel assignment.

The government wants to know the opinions of those affected and the support for the proposal and therefore before the government takes a position on a proposal, it is sent out for consultation to relevant authorities, organizations, municipalities, and other interested. The general public also has the right to provide comments. Last day to provide comments on the inquiry was the 1^st of November 2023. All the opinions can be found on the government’s website.[73] If, how or when this will be introduced in a law is not yet specified.

The Swedish Migration Agency maintains a list of persons who have registered with them to be legal counsel in asylum and migration cases and distributes cases according to their availability. There is currently no data available on the number of persons registered on that list.[74] There are no requirements for 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 their duties and to request a new lawyer. However, substitution of counsel may only occur with special permission and only if there are particular reasons.[75] The concept of ´special reasons´ in the substitution of public counsel can include situations where there is a significant conflict between the client and the current counsel, lack of trust, or circumstances that substantially affect the ability to provide effective legal assistance. It can also be related to the counsel’s health, capacity, or other factors that impact their ability to perform the assignment satisfactorily. Determining ‘special reasons’ may be subject to assessment based on specific circumstances in each individual case and may vary.[76]

In 2019, legal counsel was granted in 17,099 regular cases and in 277 Dublin cases.[77] The Migration Agency does not have reliable data on this for 2021. In 2022, legal counsel was granted in 9,056 cases. The Migration Agency does not have reliable data on this regarding Dublin cases.[78] In 2023, granting of legal counsel decreased to 3,268 cases and the Migration Agency does not have any reliable data on this for Dublin cases.[79]

Asylum seekers can also approach NGOs for advice. It should be noted that some NGOs have cut back their services to asylum seekers while others such as the Swedish Refugee Law Center are expanding their services through increased funding from their constituent organisations the Church of Sweden, Caritas Sweden, Save the Children Sweden and the Diocese of Stockholm. The Swedish Red Cross offers legal support through a hotline as well as by appointment, and its lawyers can act as legal counsel. The Red Cross prioritises cases concerning family reunification, persecution due to risk of torture and gender-based persecution. The EUAA mentions that the Swedish Refugee Law Centre continued to offer remote counselling in 2021 due to COVID-19 restrictions.[80] However, it was not solely because of the COVID-19 pandemic. Remote counselling was actually maintained as a way for the centre to continue to reach a wider group of asylum seekers. With remote counselling, the centre could provide legal advice to individuals who may not have been able to access in-person services, either due to geographical barriers or COVID-19 restrictions. By offering remote counselling, the Swedish Refugee Law Centre could continue to help a larger number of asylum seekers understand their rights and the asylum procedure.

[1] Swedish Migration Agency, Annual Report 2020, available in Swedish at: https://bit.ly/42Ura02, 38.

[2] Migration Agency, Annual Report 2021, available in Swedish at: https://bit.ly/3KTSUYy.

[3] Information provided by the Swedish Migration Agency’s statistical unit in March 2023.

[4] Information provided by the Swedish Migration Agency’s statistical unit in March 2024.

[5] Information provided by the Migration Agency in May 2023. Also available in Swedish at: https://tinyurl.com/724j6msa.

[6] Migration Agency, Annual Report 2021, available in Swedish at: https://bit.ly/3KTSUYy

[7] Information provided by the Swedish Migration Agency’s statistical Månadsrapport 2312.

[8] Ch. 8, section 10, The Aliens Regulation.

[9] Swedish Refugee Law Center, Flyktingskapsbedömningar i första instans – ett år efter talibanernas maktövertagande i Afghanistan, 2022, available in Swedish at: https://bit.ly/3Jnbf2G, 42.

[10] Swedish Migration Agency, Rättsligt ställningstagande. Prövning av skyddsbehov för medborgare från Afghanistan – RS/089/2021 (version 5.0), 2023-11-27, available in Swedish at: https://tinyurl.com/2xy9ncnh.

[11] Information from the Migration Agency’s routine document for categorizing cases into tracks.

[12] Information provided by the Swedish Migration Agency.

[13] Information provided by the Swedish Migration Agency.

[14] Information provided by the Swedish Migration Agency’s statistical unit in January 2023.

[15] Information provided by the Swedish Migration Agency’s statistical unit in January 2024

[16] Chapter 13 Section 1 Aliens Act.

[17] Section 7 Health and Medical Services Act, available in Swedish at: https://tinyurl.com/4nyze5nt.

[18] Gotenburg University, Värdering av muntliga utsagor, ett vetenskapligt baserat beslutsstöd för     migrationsärenden, 2017, available in Swedish at: https://bit.ly/37iJFzV.

[19] Swedish Refugee Law Center, Tillförlitliga kriterier? En granskning av Migrationsverkets tillförlitlighetsbedömningar av asylberättelser, 2019, available in Swedish at: https://bit.ly/3dtvDMn.

[20] Practice-informed observation of the Swedish Refugee Law Center, January 2024.

[21] Information provided by lawyers from the Swedish Refugee Law Center on March 2021.

[22] Sveriges Radio, ‘Kritik mot asylutredningar på distans’, April 2020, available in Swedish at: http://bit.ly/2ZVBipR.

[23] FRA, Migration: Key Fundamental Rights Concerns, November 2020, available at: https://bit.ly/2YThMtx,  23.

[24] Ch. 8, Section 9 c Aliens Ordinance Act.

[25] Ibid. Note that Article 15.3(c) recast Asylum Procedures Directive introduces that obligation “wherever possible”.

[26] Tidöavtalet, available in Swedish at: https://bit.ly/3lHPYr9, 45.

[27] Government, ‘En översyn av vissa frågor om offentliga biträden’, Ds 2023:14, 1 June 2023, available in Swedish at: https://bit.ly/3UD4jo1.

[28] Migration Agency, Annual Report 2019, available in Swedish at: https://bit.ly/3nw7dw0, 38-39.

[29] Migration Agency, Annual Report 2021, available in Swedish at: https://bit.ly/3KTSUYy, 96.

[30] Kammarkollegiet, Kammarkollegiets tolkföreskrifter, KAMFS 2021:2, 30 June 2021, available in Swedish at: https://bit.ly/3wBDF10.

[31] Kammarkollegiet, Kammarkollegiets tolkföreskrifter, KAMFS 2021:2, 30 June 2021, available in Swedish at: https://bit.ly/3wBDF10.

[32] Government, Att förstå och bli förstådd – ett reformerat regelverk för tolkar i talade språk, SOU 2018:83, December 2018, available in Swedish at: https://bit.ly/3SZly1m, 36.

[33]  Information provided by lawyers from the Swedish Refugee Law Center, 2024.

[35] Information provided by the Migration Agency in May 2023. Also available here in Swedish.  https://tinyurl.com/724j6msa.

[36] Skrivelse angående Migrationsverkets hantering av förordnanden av advokater som offentligt bitrade, m.m, ÄR-2023/0336, Stockholm 7 mars 2023.

[37] Ch. 12, Section 10 Aliens Act.

[38] Chapter 23 Section 2 Administrative Law (Förvaltningslagen).

[39] Administrative Court Procedure Act (1971:291) Section 50 and Administrative Procedure Act (2017:900) Section 13.

[40] EASO, Asylum Report 2020: Annual Report of the Situation of Asylum in the European Union, July 2020, https://bit.ly/30cGzxc, 164.

[41] Chapter 13 Section 13 Aliens Act.

[42] Swedish Migration Agency, Monthly Statistical Report December 2021, DNR: 1.1.1.2-2021-2118.

[43] Swedish Migration Agency, Monthly Statistical Report December 2022, DNR: 1.1.1.2-2022-1381.

[44] Swedish Migration Agency, Monthly Statistical Report December 2023, DNR: 1.1.1.2-2023-1728.

[45] Swedish Migration Agency, Monthly Statistical Report December 2021, DNR: 1.1.1.2-2021-2118.

[46] Swedish Migration Agency, Monthly Statistical Report December 2022, DNR: 1.1.1.2-2022-1381.

[47] Swedish Migration Agency, Monthly Statistical Report December 2023, DNR: 1.1.1.2-2023-1728.

[48] Statistics provided by the National Courts Authority in January 2024. The numbers are extracted from the number of asylum cases decided on where oral hearings had been conducted (“FR Rapport 300 Förh tid I avgjorda mål 2023”) and the number of concluded asylum cases (Avlägsnandemål asyl, “FR KR Rapport 100 Ink, avg.bal per målkat 2023”).

[49] Statistics provided by the National Courts Authority in January 2023. The numbers are extracted from the number of asylum cases decided on where oral hearings had been conducted (“FR Rapport 300 Förh tid I avgjorda mål 2022”) and the number of concluded asylum cases (Avlägsnandemål asyl, “FR KR Rapport 100 Ink, avg.bal per målkat 2022”).

[50] Statistics provided by the National Courts Authority in January 2023 and January 2024.

[51] Statistics provided by the National Courts Authority in January 2023 and January 2024.

[52] National Audit Office, ‘I väntan på dom – migrationsdomstolarnas handläggningstider i asylmål (RIR 2022:5)’ March 2022, available in Swedish at: https://tinyurl.com/ns8taxn9.

[53] Paragraph 6 Administrative Procedure Act (Förvaltningsprocesslagen).

[54] Paragraph 37 b Administrative Procedure Act.

[55] Paragraph 9 Administrative Procedure Act.

[56] Paragraph 37 b, Administrative Procedure Law.

[57] Ch. 16, Section 12 Aliens Act.

[58] Section 34a(2) Administrative Court Procedure Act (1971:291).

[59] Ch. 16, Section 10 Aliens Act.

[60] Ch. 16, Section 10 Aliens Act.

[61] Ch. 2a, Special Control of Aliens Act (Lagen om särskild utlänningskontroll) 1991:572.

[62] Ch. 10, Special Control of Aliens Act.

[63] Migration Court of Appeal, Decision MIG 2022:2, 25 February 2022, available in Swedish at: https://bit.ly/3zcEKhD.

[64] Chapter 18, Section 1 Aliens Act.

[65] Chapter 18, Section 1a Aliens Act.

[66] Migration Court of Appeal, Decision MIG 2017:21, UM8311-17, 14 November 2017, available in Swedish at: https://bit.ly/3dg0Ky8.

[67] Standard hourly fee for 2022 according to the Legal Aid Act, see: http://bit.ly/3rKNoy5.

[68] JO, ‘Statement regarding the Migration Board’s list of legal counsels who are subject to monitoring, supervision and control’, 4500-2014, cited in the Annual Report 2014/2015, available at: http://bit.ly/2I9LJMm.

[69] See previous updates of this country report, available at: http://bit.ly/3j5sDyg.

[70] Ändrade regler i utlänningslagen, prop. 2020/21:191, available in Swedish at: https://bit.ly/3wXzYUK.

[71] Swedish National Audit Office, ‘Lämpligt biträde med rätt ersättning – hanteringen av offentliga biträden i migrationsärenden (RiR 2022:14)’, 2 June 2022, available in Swedish at: http://bit.ly/3JSRSgP.

[72] The Government Offices, Department of Justice, ‘En översyn av vissa frågor om offentliga biträden’, Ju2023/01353, 1 June 2023, available at: https://bit.ly/3UD4jo1.

[73] The Government Offices, Inquiry of Ds 2023:14, ‘En översyn av vissa frågor om offentliga biträden’, 1 June 2023, available at: https://bit.ly/3T0esK3.

[74] Information provided by the Migration Agnecy by email in March 2024.

[75] Section 5 of the Act (1996:1620) on Public Counsel and Sections 26-29 of the Legal Aid Act (1996:1619)

[76] Information in Swedish at: https://bit.ly/3wiSQ2V.

[77] Information provided by the Migration Agency’s statistics unit.

[78] Information provided by the Migration Agency’s statistics unit.

[79] Information provided by the Migration Agency by email in march 2024.

[80] EUAA, Asylum Report 2022: Annual Report on the Situation of Asylum in the European Union, June 2022, available at: http://bitly.ws/AUaD, 198.