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In May 2021, Sweden implemented the APD´s provision regarding safe countries of origin in its national legislation.[1] The legislation process was initiated after the CJEU judgement A v Migrationsverket where the court stated that the Migration Agency cannot reject an application as manifestly unfounded with reference to COI stating that the asylum seeker is able to seek state protection, without implementing the provisions regarding safe countries of origin.
List of safe countries of origin
The Swedish Migration Agency is responsible for establishing the national list of safe countries of origin. On 25 May 2021, the Swedish Migration Agency published a provision (“föreskrift”) designating the following countries as safe countries of origin:[2]
- Albania
- Bosnia and Herzegovina
- Chile
- Georgia
- Kosovo
- Mongolia
- North Macedonia
- Serbia
The same day the list was published, the Swedish Migration Agency also published new guidelines regarding immediately enforceable returns, including the concept of safe countries of origin.[3] The Swedish Migration Agency also published country information reports for all countries on the national list. The country information reports are relatively short and provide general information about the country in question. All reports are updated at least once a year by the Swedish Migration Agency. The reports are available in a database for country guidance and legal governance, called Lifos, that is provided by the Swedish Migration Agency.[4] A description of the human rights situation and the ability to enjoy state protection in each country is also made. The reports do not provide specific information about how the Swedish Migration Agency made the actual assessment to designate the country in question as safe. No references to the criteria set out in the revised Asylum Procedure Directive are made in the reports.
In 2022 the government in Sweden changed following the general elections. Before being able to form a government the now governing parties issued an agreement, “Tidöavtalet”, with a non-governing party, the Sweden Democrats, to secure their votes for Parliament. The agreement states that a review will be made of the existing regulations on safe countries of origin to allow for adding to the list countries where parts of the country can be considered safe. They also consider shifting responsibility for the list of safe countries from the Swedish Migration Agency to the Government Offices.[5]
Application of the concept of safe country of origin
The new Swedish legislation gives the Swedish Migration Agency increased possibilities to use accelerated procedures for asylum seekers from countries on the list. According to the Swedish legislation, the Swedish Migration Agency can expel an asylum seeker who has travelled from a safe country of origin with immediate enforcement, if the asylum application is considered to be manifestly unfounded after an individual assessment. In order to use immediate enforcement, it must also be clear that a residence permit cannot be granted on any other grounds, such as humanitarian reasons or family ties in Sweden. According to Swedish case law, the assessment must be clear and made without more detailed consideration.[6]
A decision to reject an application for a residence permit from an asylum seeker from a safe country of origin can be appealed to the Migration Court and onwards to the Migration Court of Appeal. In an appeal process, the migration courts can grant the asylum seeker a residence permit if it is determined that the country of origin is not safe for the individual in question. The Migration Court can also amend expulsion decisions from being immediately enforceable to regular, if it is determined that the criteria for immediate enforcement are not met. A court decision to merely amend the expulsion decision does not necessarily mean that a residence permit will be granted, just that the decision is not immediately enforceable. Decisions from the SMA to include a specific country on the list of safe countries cannot, however, be appealed.
The Swedish Migration Agency considers that public counsel, as a main rule, should not be appointed when processing asylum applications from safe countries of origin. However, exceptions can be made for people who face special difficulties in exercising their rights.[7] Asylum seekers from safe countries of origin do not usually have the right to work in Sweden while their asylum applications are being processed.
According to a study carried out by The Swedish Refugee Law Center with support from UNHCR,[8] 37 decisions with immediate enforcement were made regarding asylum seekers from countries on the list during the first three months after its introduction. During the period under review, decisions with immediate enforcement were made regarding asylum-seekers from four of the countries on the Swedish list of safe countries of origin: Georgia (18 decisions), Mongolia (9 decisions), Albania (6 decisions) and Serbia (4 decisions). In the study, 12 of the decisions concerned families with children. A total of 22 children were affected by decisions with immediate enforcement.
In the study, questions were raised about whether the asylum seekers in all cases had had a real chance to rebut the presumption that the country in question was safe. Concerns were also raised since the threshold for considering an application as manifestly unfounded seemed to be lower in cases regarding safe countries of origin than what follows from previous Swedish case-law. It was also noted that public counsel was appointed only in very few cases and that the assessment of children´s own reasons for entitlement to a residence permit, and the best interest of the child, were very standardized in many cases.
[1] For further information see AIDA, Country Report Sweden, 2021 Update, May 2022, available at: https://bit.ly/3R31wRd, 64.
[2] Swedish Migration Agency, Migrationsverkets föreskrifter om förteckning över säkra ursprungsländer, MIGRFS 2021:4, available in Swedish at: http://bit.ly/3R54OmQ
[3] Swedish Migration Agency. Rättsligt ställningstagande RS/071/2021. Avvisning med omedelbar verkställighet till hemlandet inklusive säkra ursprungsländer, available in Swedish at: https://bit.ly/33UJbky.
[4] Swedish Migration Agency, Lifos, available in Swedish at: https://tinyurl.com/Lifos
[5] Swedish Refugee Law Center. Asylrättscentrums analys av Tidöavtalet, available in Swedish at: http://bit.ly/3LWh7Bi.
[6] See for example Migration Court Of Appeal, Decision MIG 2006:7, 30 October 2006, available in Swedish at: http://bit.ly/3XC9cMJ; MIG 2010:22, 22 December 2010, available in Swedish at: http://bit.ly/3XE1HES; MIG 2014:22, available in Swedish at: http://bit.ly/3wuz5lG
[7] Swedish Migration Agency. Rättsligt ställningstagande RS/071/2021. Avvisning med omedelbar verkställighet till hemlandet inklusive säkra ursprungsländer, available in Swedish here: https://bit.ly/33UJbky, 12-13.
[8] Swedish Refugee Law Center. Rättsäkerheten och säkra ursprungsländer, available in Swedish with an English summary at: https://bit.ly/33Ugch5.