Short overview of the asylum procedure

Sweden

Country Report: Short overview of the asylum procedure Last updated: 21/04/21

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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 Migration Agency.

Once a decision has been reached in relation to a specific asylum application, two scenarios are possible:

  • In case the application was successful, the Migration Agency Reception Unit is responsible for the facilitation of the asylum seeker’s settlement in a municipality in cooperation with the respective municipality;
  • Where the application is, however, unsuccessful or a residence permit was refused, the asylum seeker shall return to the country of origin.

Sweden has an asylum procedure where first instance decisions are taken in an administrative procedure by the Migration Agency, and appeals are dealt with an adversarial basis at two levels in the administrative courts. A first appeal may be lodged before the Migration Court. There are currently four Migration Courts, which are special divisions of the County Administrative Courts (Förvaltningsrätten) in Stockholm, Gothenburg, Luleå and Malmö.

There is a further possibility to appeal before the Migration Court of Appeal (Migrationsöverdomstolen), to which leave to appeal must be requested. The Migration Court of Appeal is a section of the Administrative Court of Appeal in Stockholm (Kammarrätten i Stockholm). For other administrative cases, the highest court of appeal is the Supreme Administrative Court (Högsta förvaltningsdomstolen). The Supreme (Civil and Criminal) Court does not deal specifically with asylum claims but hands down decisions in appealed cases on whether it is safe to return persons condemned with a crime to their home country.

First instance procedure: Asylum applications can only be made at designated offices of the Migration Agency to which airport and port applicants are referred to. The Migration Agency has implemented a new way of organising the flow of cases during 2016, which was updated in 2018, in response to a government order to shorten processing times.[1] 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.

Since 2016, cases are screened and sorted in different tracks based on their specific profile during the initial process.[2] Manifestly unfounded applications, Dublin cases and cases with a high percentage of rejection 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 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 Unit. 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.

Track 1 Presumed positive outcome

Track 1 categorises cases where the presumption is that the case will be successful. The aim is to create preconditions for rapid settlement for persons who are likely to stay in Sweden.

 

Track 2 Presumed negative outcome

Track 2 categorises cases where there is no presumption of approval. The aim of track 2 is to deal with cases where the outcome of the case is unclear.

 

Track 3 Formulärets överkant

 

Delayed case processing

In track 3 cases are categorised where the handling time will extend more than 6 months because of the complexities of the case. The aim of category 3 is to deal with cases with delayed processing.

 

Track 4A Accelerated Procedure: In track 4A cases are categorised based on a presumption that the application will be refused and expulsion take place with immediate effect or where the applicant is an EU citizen. 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 where a rapid assessment procedure is possible and return feasible. 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

 

Track 5B

Cases to be dealt with under the Dublin Regulation.

 

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 Migration Agency is responsible for examining all asylum claims at first instance but also for assessing subsequent applications and determining whether new circumstances can lead to a different outcome in cases that have already been fully processed and where there is a legally enforceable removal order.

Free legal aid at first instance is granted in all asylum cases in the regular procedure. The applicant can request a specific lawyer on the list administered by the Migration Agency and this choice 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.[3] However, in most cases, it is the Migration Agency that designates legal counsel. Interpreters are available at all stages of the procedure. There is always an oral interview at the 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 determined necessary in accordance with current practice as determined by the Migration Court of Appeal. In cases where the 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 it’s 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 an 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. It is only since the implementation of the Dublin III Regulation that regular refugee and asylum lawyers have been appointed in Dublin cases.

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 Migration Agency. The Agency has the discretion to either change its earlier decision, should important new circumstances or the fact that the Migration Agency should consider its own decisions erroneous warrant that, 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. 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 Migration Agency for reconsideration. This is because applicants have the right to have their protection grounds assessed at two separate instances.

The applicant or the 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. 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.”[7] Such exceptional reasons can exist where the Migration Agency has made a serious procedural error. 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 exceptional circumstances regarding threats to society, the time limit can be even shorter.

In national security cases, 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. 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 Migration Agency. The asylum seeker appealed the decision but then left Sweden before the case was decided.

 

[1] See Swedish National Financial Management Authority, Regleringsbrev för budgetåret 2016 avseende Migrationsverket, 17 December 2015, available in Swedish at: http://goo.gl/Kvt5rD.

[2] Migration Agency, Standard för Spårindelning i skyddsprocessen, I-24a/2018, 1 October 2018.

[3]Migration Court of Appeal, Decision MIG 2017:21, UM8311-17, 14 November 2017, available in Swedish at: https://bit.ly/3b2pGXm.

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; ECtHR, Tarakhel v. Swtizerland, Application No 29217/12, Judgment of 4 November 2014.

[6]  Migration Court of Appeal, UM 5998-14; UM 3055-14, 19 December 2014.

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

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX – I Transposition of the CEAS in national legislation