Author
All unaccompanied children have the right to be represented by a guardian as soon as they have lodged an asylum claim. The law also requires that legal counsel be appointed promptly.
No differences are made between Dublin cases, manifestly unfounded cases or regular procedure cases regarding the right to a guardian. Every unaccompanied child is assigned a guardian but, should an age assessment lead to the person being considered an adult, the assignment ceases despite the fact that the age assessment decision can be appealed and has therefore not gained legal force. In certain cases, courts have pointed out that this practice is not in line with legal principles. The Administrative Court of Gothenburg issued a decision recognising that a child who had had his age adjusted to over 18 was still in the appeal procedure and that the decision on his age had not gained legal force. Therefore, he should still have the right to a guardian during that period.[1]
Guardians need to be persons of high moral character and may come from different social backgrounds.
Every municipality, which is the responsible entity for the reception of unaccompanied children, has a “chief guardian” (överförmyndare) whose role is to assess a person’s suitability to be a guardian. General knowledge of managing personal finances and common sense, combined with a personal and social involvement, are considered appropriate qualities. There is a specific law covering the duties of the guardian.[2]
According to law, a guardian must be appointed as soon as possible. However, there is no time limit for the appointment of a guardian.[3] Guardians are reimbursed for their costs and also receive a nominal fee from municipalities. No requirements about formal education or specialist knowledge in the field of asylum are imposed prior to eligible for appointment. All guardians are appointed by the chief guardian in the municipality and in many cases, are frequently offered basic training courses. There are also national organisations for guardians that also organise courses and exchange views and experiences. Both established NGOs in the field of asylum and the Migration Agency offer courses for guardians.
In several reports children have voiced that the qualities of the legal guardians vary, in terms of commitment, support provided and knowledge of the asylum procedure. [4]
On 18 July 2019, the Government assigned an inquiry to review the regulations concerning legal guardians and trustees. In May 2021, the inquiry proposed, among other things, mandatory introduction and in-depth training for legal guardians and trustees, as well as better governance and supervision. It was also proposed that a new government agency would have primary responsibility in this area.[5]
In two legal positions, the Swedish Migration Agency specifies the requirements to be appointed as a public counsel and the case involves children. The person must have knowledge of children in the migration process and should have experience representing children in migration cases.[6] A person may be appointed as a public counsel for a child, only if due to his or her knowledge and experience and also in other respects, the person is particularly suitable for the task. A person wishing to be considered for such appointments must provide evidence of experience representing children. The assignment requires knowledge of the Convention on the Rights of the Child and its application in Swedish law. Furthermore, knowledge of children’s development and the needs and rights of children is required. [7]
339 unaccompanied minors sought asylum in 2023.
| Country of origin | Number of applicants |
|
Syria |
71 |
| Afghanistan | 70 |
| Somalia | 33 |
| Morocco | 25 |
| Eritrea | 14 |
| Other | 126 |
| Total |
339 |
Source: Swedish Migration Agency, Inkomna ansökningar om asyl, 2023, available in Swedish at: https://bit.ly/3Jdz4dg.
[1] Administrative Court of Gothenburg, Decision 4737-15, 28 June 2016.
[2] Lag (2005:429) om god man för ensamkommande barn, available in Swedish at: https://bit.ly/3SzGlY4.
[3] Paragraph 3 § lagen om god man för ensamkommande barn.
[4] Rädda Barnen; Lyssna på mig – barns och ungas röster om asylprocessen, 2017, available in Swedish at: https://bit.ly/3wgkgGt; Swedish Government Official Report SOU 2023:40, Förbättrade möjligheter för barn att utkräva sina rättigheter enligt barnkonventionen, 23 August 2023, available in Swedish at: https://bit.ly/3I2M0Ru.
[5] Swedish Government Official Report (2021) SOU 2021:36, Ställföreträdarutredningen, Gode män och förvaltare – en översyn, available in Swedish at: https://bit.ly/4bGxZXh.
[6] Migration Agency, Legal position Who can be appointed as a public counsel, RS 003/2020, 18 May 2020, available at: https://bit.ly/3SGcXzs.
[7] Migration Agency, Rättsligt ställningstagande, Kvalitetskrav på offentliga biträden, RS/021/2020, 10 February 2023, available at: https://bit.ly/4bCYQU9.