Author
General (scope, criteria, time limits)
According to Chapter 5, Section 1b of the Aliens Act, an application can be dismissed as inadmissible where the applicant:
- Has obtained international protection in another EU Member State;
- In a country that is not an EU state has been recognised as a refugee or has equivalent protection, if the applicant will be admitted to that country and is protected from persecution and from being sent to another country where he or she risks persecution, or
- Can be sent to a country where he or she does not risk persecution, death penalty, corporal punishment, torture, or other inhuman or degrading treatment or punishment, is protected from being sent to another country where he or she does not have equivalent protection, has the opportunity to apply for refugee protection, and has such a connection to the country in question that it is reasonable for him or her to travel there.
In practice, the Swedish Migration Agency deals with cases of persons benefitting from protection in another EU country under “Track 5B”. Cases concerning third countries are processed under “Track 5C”. The Swedish Migration Agency shall take a decision on the admissibility of the application within 3 months. In 2023, the Swedish Migration Agency received 115 applications that were processed under Track 5B and 11 applications were processed under Track 5C. 140 decisions were taken under Track 5B and 8 decisions taken under track 5C.[1] There is no time limit from the Swedish Migration Agency to process these cases.
Personal interview
There are no differences in the practical way the personal interview is conducted in cases where grounds for inadmissibility exist. Applicants are afforded the same two interviews as in the Regular procedure. However, there are differences in the actual questions asked if the Migration Agency does not intend to process the asylum case in Sweden. During the interview, they will be asked about their health status to assess any medical needs they may have. Additionally, questions about their family situation may be posed to understand if they have relatives in Sweden or other European countries, which could influence the decision on where their application is processed. Furthermore, details about their journey to Sweden will be explored to determine if they have travelled through other European countries or if they have applied for asylum elsewhere.
The applicant will have one opportunity to say what they think about their application potentially being assessed in another country. The interview is their only opportunity to talk to the Migration Agency and say why they think their application should be assessed in Sweden.
Following an interview with the Swedish Migration Agency, where questions regarding the applicant’s health, family, and journey to Sweden are addressed, the Migration Agency will evaluate if any new information emerged that could lead to their application being processed in Sweden. If not, a request for transfer to the responsible country for asylum investigation will be sent. If the Migration Agency determines that the applicant’s application should be processed in another country, they will receive an appointment where the decision will be communicated to them. At this stage, they will be informed of their right to appeal the decision within three weeks. Additionally, they have the option to request that the transfer be halted while awaiting a decision from the court.
Appeal
The Swedish Migration Agency may take a decision with immediate enforcement for applications dismissed on the basis of protection in another EU Member State or the first country of asylum concept; not for safe third country cases.[2]
Therefore, the appeal has automatic suspensive effect in cases dismissed on safe third country grounds, but not in cases concerning protection in another EU Member State and in first country of asylum cases. That said, the April 2021 legal opinion of the Swedish Migration Agency suggests that in first country of asylum cases a decision with immediate enforcement should be taken only when it is obvious that the applicant enjoys sufficient protection in the country concerned.[3] However if the decision on expulsion is appealed, the migration court that is responsible for reviewing the appeal shall consider whether the enforcement of the expulsion decision should be temporarily suspended (inhibition). The decision on expulsion may not be enforced until this review has been conducted.[4]
Legal assistance
As a rule, legal assistance is not granted in cases falling under the grounds for inadmissibility, unless a more thorough assessment of first country of asylum or safe third country considerations is required. Such an assessment is conducted by the Swedish Migration Agency depending on the difficulty of the case. However, legal assistance is always granted to unaccompanied children and may exceptionally be granted to applicants depending on factors such as age or mental illness.[5]
Suspension of returns for beneficiaries of protection in another Member State
There are no returns of beneficiaries of protection to other Member States.
[1] Information provided by the Migration Agency’s statistics unit.
[2] Ch. 8, Section 19 Aliens Act.
[3] Migration Agency, Rättsligt ställningstagande angående avvisning av ansökan om uppehållstillstånd med stöd av 5 kap. 1 b § utlänningslagen, RS/065/2021, 23 April 2021, available in Swedish at: https://bit.ly/3lm5rtq, 9.
[4] Ch. 12, Section 8a Aliens Act.
[5] Migration Agency, Rättsligt ställningstagande angående avvisning av ansökan om uppehållstillstånd med stöd av 5 kap. 1 b § utlänningslagen, RS/065/2021, 23 April 2021, available in Swedish at: https://bit.ly/3lm5rtq, 11.