Author
Adequate support during the interview
Although there is no specialised unit dealing with vulnerable groups at the Migration Agency, the issue of special needs of vulnerable asylum seekers is mainstreamed in the training of caseworkers. The Migration Agency has developed training courses for caseworkers who interview children, inter alia based on European Union Asylum Agency (EUAA) training modules, and those who have completed this training are designated as case workers especially for unaccompanied children. The case officers who investigate children must have child rights competence and child competence. They should also have investigative experience and have completed relevant child-related training.
Training courses have been carried out and instructions issued in relation to women refugee claimants and claimants with LGBTQI+ claims.[1]
Examples of measures given in an internal guideline regarding vulnerable applicants and applicants with special needs include prolonging the procedure to allow time for the applicant to put forward their claims; choosing a suitable residence for the applicant; as well as flagging medical care needs to the health authorities. It is stressed that employees of the Agency should refrain from making any medical assessment but that they should note what the applicant states about their medical condition. If the applicant states they have suffered torture then the veracity of that statement must not be investigated by agency employees. A suitable measure in such cases can be to lengthen the time for the procedure and, if necessary, book a medico-legal investigation.[2]
Persons with special needs are generally channelled in the regular procedure, in particular where there are indications that an age assessment is needed or indications of human trafficking, torture, or issues of sexual orientation or gender identity. If special reports are needed to verify trauma of various kinds, the Migration Agency can grant an extension of the normal procedure time to accommodate this need and to collect additional documentation.
The Migration Agency has developed a procedure for measures to be taken in the event of suspicion of human trafficking and cooperates with social services and the police. Training initiatives continued during the year and will be evaluated during 2024. [3] The Swedish Migration Agency has also produced support material for legal guardians.[4]
New caselaw relating to procedural guarantees
The Migration Court of Appeal ruled in May 2022 in case MIG 2022:4,[5] that the Migration Court’s investigative responsibility becomes relevant when it is clear that the appellant has communication difficulties and that these may have affected both the appellant’s ability to explain his reasons for asylum and the assessment of the appellant’s credibility. The appellant in the case was deaf and his sign language was very limited.
Vulnerability questions pertaining to children
Children do not have the legal capacity to submit an individual application. An application for residence permit/international protection must be submitted by a person with the legal capacity to represent the child, such as parents/legal caregivers or in the case of an unaccompanied minor, a legal guardian. Children have the right to have their asylum claims examined individually. The child has a right to be heard, but no obligation. The case officers who investigate children must have child rights competences and child-related competences. They should also have investigative experience and have completed relevant child training.
In order for the Swedish Migration Agency to be able to hold an investigative interview with a child, the child must want to talk to the Swedish 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. The Swedish Migration Agency must inform the parents, as well as the children, that children may have specific grounds for protection, the child’s right to express his or her views and the Swedish Migration Agency´s obligation to investigate the child’s case individually. The consent of at least one of the guardians is required in order to hear a child. Children have as mentioned above the right to be heard and the right to an individual assessment. However, as the Swedish Migration Agency need the consent of the parents/legal caregivers to conduct an interview with a child, without consent, the child cannot be heard by the authorities. If the Swedish Migration Agency considers that an accompanied child should be heard and there are conflicting interests, a legal guardian and a public counsel separate from that of the family can be appointed. The Swedish Migration Agency has published a legal position on conflicts of interest between children and the children’s important adults, such as parents, legal guardians and public counsels.[6]
In the situation where there is a conflict of interest, a legal guardian can be appointed according to the Parental Code section 11 paragraph 2. It is then the legal guardian and not the parents/caregiver that has the legal capacity to represent the child in the migration process. However, according to a recent national inquiry proposing, inter alia, that Sweden ratifies the Third Optional Protocol to the Convention on the Rights of the Child on a communication procedure, in practice this solution is insufficient.[7] The Inquiry has identified several shortcomings and problems that make it more difficult and sometimes impossible for children to exercise their rights. This include both procedural obstacles as well as shortcomings in terms of accessibility and information. The inquiry proposes several legal amendments to ensure the opportunity of children to exercise their rights under the CRC. The inquiry also suggests clarification of the child’s right to be heard in the migration process.
Inquiries have identified that despite the explicit provision on the best interests of the child in the Aliens Act, assessments are often not based on the situation of the individual child. There are often references to statements in preparatory work rather than an evaluation of the best interest in the specific case. Several investigations and reports have also shown shortcomings in accompanied minors’ right to be heard in asylum cases and having their claims assessed individually.[8]
On 1 January 2020, the UN Convention on the Rights of the Child (CRC) was incorporated into Swedish national law and entered into force.[9] The government in the preparatory work stated that in addition to incorporation, continued incorporation of the CRC is required and highlighted the importance of the principle of the best interest of the child being used as a rule of procedure.[10]
Other than legislative measures, there have been developments to strengthen the rights of children. The Migration Agency published a legal position on the examination of the best interest of the child in June 2020.[11] Sweden has recurringly received criticism from the UN Committee on the Rights of the Child regarding the provision in Chapter 1 Section 11 § of the Aliens Act, which advises refraining from hearing a child if the authority deems it inappropriate. There has been no amendment in the legislation according to the Committee´s recommendations. The Swedish Migration Agency, however, has revised their legal position on hearing children.[12] The provision must, according to the Swedish Migration Agency, be interpreted in the light of the Convention and it shall only be considered inappropriate to hear a child if the child themselves declares that they do not wish to be heard. However, the legal position is only a document guiding the personnel at the Swedish Migration Agency, with no particular legal force.
An internal quality review of the processing of accompanied children in the asylum process was presented by the Swedish Migration Agency in December 2022.[13] According to the review, findings show that measures taken by the authority regarding children seem to have had an effect in some aspects, but shortcomings were identified. In general, the best interests of the children are taken into account during the processing, the investigations are of a high level, the children are treated well and receive relevant questions about their reasons for asylum.
The report however identified shortcomings in documentation and that some cases had not been sufficiently investigated. The children’s individual reasons and other relevant factors are highlighted in several decisions – but not in all. The review furthermore showed that in a clear majority of the cases, the best interest of the child is not identified and the balance against opposing interests often done in an unclear manner. A majority of the decisions reveal examples of shortcomings in the application of the method – how the examination of the child’s best interests should be carried out, justified and clearly form an integral part of the assessment. The shortcomings occur regardless of whether it is an approval or rejection case. However, the authors concluded that in the majority of the cases, the outcome was regarded as legally acceptable.
In a comment to the report published by the Swedish Refugee Law Centre, criticism was put forward regarding the conclusion made by the authors and that the examination of children’s own reasons for asylum had been overlooked in the review. The report identifies shortcomings in the conditions for children to talk about their own reasons for asylum, and it is not clear from the review how many of the decisions granting asylum are based on the child’s own reasons for asylum. The Swedish Refugee Law Centre therefore calls for a new review focusing on how children’s reasons for asylum are assessed and taken into account. The Swedish Migration Agency is indeed clear in its self-criticism regarding the shortcomings of the examination of the child´s best interest. At the same time, the Swedish Refugee Law Centre notes with concern that, despite the serious shortcomings that have been identified, the Swedish Migration Agency considers that the outcome of the reviewed cases has been legally acceptable. The Swedish Migration Agency is of the opinion that the decisions appear to have a correct outcome in the light of the documentation available in the cases, even if they were justified in a deficient and unclear manner. In the comment by the Swedish Refugee Law Centre it is argued that it is not possible to conclude that an outcome is legally acceptable if the documentation is inadequate, the best interests of the child have not been identified or if no examination of the child’s best interests has taken place.[14]
As part of the quality review, a questionnaire was sent to decision-makers at asylum units. The findings from the questionnaire are published in a separate report.[15] When respondents are asked what makes it difficult to consider the best interests of the child, lack of resources, unclear legislation and /or conflict with other legal provisions seem to pose the greatest challenges. Lack of resources primarily referred to lack of time. The reasons stated for the lack of time was, among other things, connected to priorities, such as production requirements, but also that the time booked for asylum interviews is not adapted to the individual case and that sufficient time is not allocated for interviews with the children in the family.
At the beginning of 2023, an assignment was given within the Migration Agency to develop an action plan to increase the legal and procedural quality in the parts where the quality follow-up identified deficiencies. The action plan proposes an educational initiative with a focus on writing and justifying the position (in decisions) on the best interests of the child and is aimed at all employees in the asylum process and administrative process. One of the measures proposed in the quality follow-up was that, after the measures had been introduced, it should be decided whether a new quality follow-up is needed. That is yet to be decided.[16]
As mentioned in the 2022 AIDA report, during 2022 a review of asylum cases where the issue of the risk of genital mutilation was assessed showed quality deficiencies in the processing. 42 cases were reviewed, of which all asylum seekers were women/girls, the vast majority of them children. The cases involved applicants from Egypt, Eritrea, Ethiopia, Nigeria, Somalia and Sudan and both approval and rejection decisions were reviewed. Shortcomings were identified, including in the investigation of the parents’ attitudes towards protecting the child against genital mutilation and the interpretation of country information. Since the review revealed shortcomings, lectures have been conducted within the authority’s asylum examination to raise the level of knowledge. A training case has been developed and a processing support has been published.[17]
Regarding unaccompanied minors and adequate reception in 2022, the Migration Agency published a legal comment on the authority´s interpretation of the ruling by the CJEU in case C-441/19 regarding Member states’ duty to carry out a general and in-depth assessment of the situation of unaccompanied minors, taking due account of the best interests of the child and to ensure that adequate reception facilities are available for the unaccompanied minor in question in the State of return, before issuing a return decision. Despite criticism from lawyers and civil society, the Migration Agency assessed that the proceedings in Sweden are in compliance with the ruling.[18]
In 2021, UNICEF published a review of court cases from 2020 pertaining to the Convention on the Rights of the Child.[19] It found that in court cases where the CRC was brought up, assessments of the best interest of the child were rarely clearly documented and it was often unclear how the assessment had been carried out. However, there were positive outcomes in cases where the child was granted a residence permit based on particularly distressing circumstances, with reference being made to the best interest of the child. The author however cautioned that it was too early to draw certain conclusions.
There has also been positive outcomes from the Migration Court of Appeal in asylum cases where the best interests of the child was explicitly mentioned; regarding a 14-year-old child born and raised in Sweden,[20] and regarding a three-year-old boy with a serious health condition.[21] Both rulings are important as a ruling from the Migration Court of Appeal is indicative and the rulings offer guidance on how to assess the best interest of the child, and on the proportionality test when balancing different interests, such as the best interest of the child vis-à-vis for instance the interest of the state to uphold regulated migration.
In a decision of 17 February 2023, the Migration Court of Appeal found, with reference to, among other things, the principle of the best interests of the child and the right to be heard, that the Migration Court should not have rejected a child’s request for an oral hearing.[22]
In October 2023, the Migration Court of Appeal referred a case back to the Migration Court. The court had granted a child and one of the parents refugee status and residence permit in Sweden, but had rejected the other parent´s application for residence permit. Referring to, inter alia, the CRC, the Migration Court of Appeal found that the Migration Court had not made any assessment of the best interests of the child and the consequences of the expulsion of the parent for the child. This was considered a serious deficiency in the court’s handling of the case.[23]
On 1 July 2022, 31 civil society organisations working with children’s rights, including the Swedish Refugee Law Center, submitted an alternative report to the UN Committee on the Rights of the Child as a basis for the ongoing review of Sweden. The report is an appendix to the main report Hör barnens röst (Hear the Children’s Voice) produced by children themselves, without adult analysis or interpretation.[24] In the report, the children talk about experiences of racism and discrimination, about being children on the move, about violence and about other forms of vulnerability. As an appendix to the children´s report, the civil society organisations presented an analysis of the main issues and areas that require improvements in order for Sweden to live up to its obligations under the Convention. Recommendations from the civil society to the Swedish government are also published separately.[25] The Ombudsman for Children also submitted a report to the Committee.[26]
Concerns that were raised in both reports concerned, inter alia, that there is not yet a systematic approach to the use of the Convention in the application of law in municipalities, regions and by national authorities. Despite the Committee’s recommendations, there is still no legislation regarding child-specific persecution. Several investigations and reports have shown that there are major shortcomings in the child’s right to be heard in asylum cases when children seek asylum together with parents or guardians, and having their claims assessed individually.
The Committee issued its recommendations and comments to Sweden in February 2023.[27] The Committee welcomes the fact that the Convention on the Rights of the Child has become Swedish law. However, the Committee expresses great concern about areas where it believes that immediate action needs to be taken, including the situation of refugee children and children in legal proceedings. The review reveals several systemic shortcomings regarding assessments of the best interests of the child, children’s participation in legal processes and the lack of child-impact assessments in the legislative process. The audit also shows that it is difficult for children to obtain redress when their rights under the Convention on the Rights of the Child are violated.
With regard to children who are in Sweden as asylum seekers, refugees or in the migration process, the Committee welcomes the work carried out by the Swedish Migration Agency regarding, among other things, assessments of the best interests of the child. However, the Committee is deeply concerned about the restrictions that have been introduced in legislation and the consequences this has had for children in terms of family reunification, access to permanent residence permits and social security. The Committee is also deeply concerned about the proposals for further restrictions presented in the Tidö Agreement, which will have consequences for children.
To strengthen the rights of children in asylum or migration, Sweden is encouraged to take measures to ensure that the best interests of the child are a primary consideration in asylum processes. The Committee maintains its previous recommendation that the unsuitability requirement in the Aliens Act, i.e. that children must be heard unless it is deemed inappropriate, be removed. In addition to guidance and training for relevant actors, the Committee recommends that the Aliens Act be amended in order to clarify the assessment of the best interests of the child, and that child-specific persecution and the assessment of the best interests of the child be integrated into the legislation. The Committee also calls on Sweden to ensure that children who have been taken into care by society after being subjected to violence by their parents are not deported along with their parents. Sweden is also urged to take measures to make it easier for children to be reunited with family members by removing the maintenance requirement. With regard to unaccompanied minors from Ukraine, Sweden is urged to take measures to maintain or enable contact with the children’s family members.
However, rather than taking measures to make it easier for children to be reunited with family members by removing the maintenance requirement, as the Committee urged, on 1 December 2023 further restrictions regarding family reunification was introduced (see: Family reunification).
On 1 December 2023, restrictions were also introduced on the possibility for both adults and children to be granted a residence permit on humanitarian grounds. For children, the amendment means a return to the wording of the Aliens Act’s provision on humanitarian grounds before 2014, That provision was amended in 2014 with the purpose of facilitating assessments concerning children, to highlight the children’s rights perspective and to emphasize the principle of the best interests of the child.[28] The legislative change has been criticized because of the lack of child impact assessment. In addition, the Convention on the Rights of the Child (CRC) became Swedish law in 2020. Civil society has pointed out that removing improvements made to ensure children’s rights is in contrast to the CRC and the purpose of the Swedish Children’s Rights Act.
Vulnerability questions pertaining to women
As mentioned in the previous AIDA report, an issue that was raised in 2019 by the University of Uppsala with the assistance of the Swedish Refugee Law Center relates to the fact that the Swedish Migration Agency has rejected asylum claims of female applicants in cases where they can rely on a ‘male network’ (i.e. male relatives such as brothers, the father, male relatives from the woman’s husband etc.) in their home country. In such cases, the asylum claim may be rejected and women are subsequently deported to their country of origin. The authors concluded that relying on this so-called ‘male network’ in asylum assessments violates UNHCR guidelines and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This issue was particularly criticised and reported in cases involving women from Afghanistan.[29]
In 2021, Sweden was reviewed by the UN Committee on the Elimination of Discrimination Against Women (CEDAW). On 8 March 2021, a report concerning Sweden’s compliance with CEDAW was published by the Swedish CEDAW network, consisting of 25 NGOs and coordinated by the Swedish Women’s Lobby.[30] The CEDAW network sent a joint submission to the UN Committee.[31] Regarding asylum-seeking women, the network raised concerns regarding the failings in the examination of women´s grounds for asylum, for instance insufficient gender sensitive considerations when assessing the oral account and the reference to having “a male network”. The CEDAW network also raised concern over the Migration Agency´s accommodation for asylum seekers, where women have stated that they have been harassed and feel unsafe.
On 24 November 2021, the Committee published its concluding observations on the tenth periodic report of Sweden.[32] In a general context, the Committee is concerned about the prevalence of gender-based violence against women, including domestic violence. The Committee remains concerned that the provisions of the Convention, the Optional Protocol thereto and the Committee’s general recommendations are not sufficiently known in Sweden, including by women themselves. The Committee also notes with concern the continued lack of references to the Convention in court decisions in Sweden.
On 8 March 2023, the Swedish Refugee Law Center published a report based on a study of 41 cases concerning gender-based asylum claims; Kvinnor i asylprocess – vikten av ett genusperspektiv (“Women in the asylum procedure – the importance of applying a gender perspective”).[33] In a number of cases shortcomings regarding the procedural guarantees were noted preventing women from disclosing gender- based asylum claims. Identified areas of concern regarding the assessments were insufficient gender sensitive considerations when assessing the oral account, failure in applying the benefit of the doubt and a lack of due consideration to factors leading to late disclosure. Failings in the future risk-assessments were furthermore identified, where the migration authorities assessed each of the grounds for protection separately and did not sufficiently take into account that several factors and combined grounds could aggravate the risk for the woman having a well-founded fear of persecution.
Identified as a noteworthy area of concern was the reference to a male network and the weight that was attributed to it, in many cases regardless of the woman´s individual situation and asylum claim. This issue was as mentioned above raised already in 2019 by the University of Uppsala. Although limited in scope, the shortcomings in the assessments of the Swedish Migration Agency and the Migration Courts that were noted in the cases analysed in the study may be indicative of shortcomings on a general level and warrant further investigations. In the report, recommendations are directed to the Swedish Migration Agency and the Migration Courts. As for the Migration Agency the authority is recommended to carry out a follow-up quality evaluation of both procedural issues and the assessment of women’s reasons for asylum, with a suggested strong focus placed on investigations of and assessments of the relevance of a male network. The Migration Agency is also recommended to update the legal position and provide legal guidance to support gender-sensitive interpretation of all Convention grounds. In order to enable correct refugee assessments of women’s reasons for asylum, knowledge of gender-based violence and discrimination against women must be strengthened. The Migration Agency is therefore recommended to, within existing educational initiatives, include knowledge of the CEDAW Convention and the CEDAW Committee’s recommendations, as well as the Istanbul Convention as these conventions strengthen and complement the international legal framework for refugees and stateless women and girls. The Migration courts are recommended to initiate trainings on gender-based violence in order to enhance competence in assessing asylum claims regarding women fearing gender-based violence, including knowledge of the CEDAW Convention, the CEDAW Committee’s recommendations, as well as the Istanbul Convention. Both the Migration Agency and the Migration Courts are recommended to explore the possibility of making greater use of expert opinions in gender- based asylum claims.
It should be noted that the cases concerning women from Afghanistan included in the study predated the Taliban takeover (see below).
On 6 December 2022, the Swedish Migration Agency, in an updated legal position regarding applicants from Afghanistan[34] stated that the situation of women in Afghanistan is considered to be such that their fundamental human rights are violated, and that this is done, inter alia, through legal, administrative, policy and/or judicial measures that are in themselves discriminatory or implemented in a discriminatory manner, cf. Article 9(2)(b) of the Qualification Directive. The Swedish Migration Agency considers that it is likely that women and girls in Afghanistan in general, including women and girls in families with a male family member, through the accumulation of various measures, risk being subjected to discrimination at such a level and with such severe restrictions on their fundamental rights and freedoms that, in a forward-looking assessment, this will reach persecution, cf. Article 9(1)(b) of the Qualification Directive. This means that an asylum-seeking woman or girl from Afghanistan must be assessed to be a refugee as belonging to a particular social group, i.e., gender, according to Chapter 4. Section 1 of the Aliens Act.
If a woman or a girl has received an expulsion decision, the situation in Afghanistan mentioned above is to be considered a new circumstance according to the rules regarding impediments to enforced return. If it is not deemed possible to grant a residence permit in accordance with Chapter 12. Section 18 of the Aliens Act, the case shall be re-examined in accordance with Chapter 12. Section 19 of the Aliens Act since it can be assumed that the Taliban regime’s approach to women and girls and the generally worsening situation constitute such permanent obstacles to enforcement as referred to in Chapter 12, Sections 1-3 of the Aliens Act.
In 2019, the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) published its report on Sweden’s implementation of the Istanbul Convention. The findings were presented in the 2021 update of the AIDA report.[35] Regarding asylum-seeking women, GREVIO noted limitations regarding gender-specific interviews with case managers, i.e., the difficulty to build trust and be able to tell traumatic experiences. Additionally, GREVIO noted that women are unaware of the importance and relevance that their accounts of gender-based violence and persecution may have on the asylum procedure.[36]
GREVIO furthermore commented on restrictions regarding the possibility of a person, having been granted a temporary residence permit as a spouse or partner, being granted an autonomous residence permit. The restrictions introduced by the Temporary Act ceased to exist when the new legislation entered into force in July 2021. A continued and autonomous residence permit may be granted where the relationship has ended following violence on the alien or the alien’s child or another serious violation of their liberty or peace (Chapter 5 Section 16). However, there are some limitations on the definition. GREVIO finds it worrying that there is a duration requirement of the relationship (which is not a requirement under the Istanbul Convention) and further criticises the narrow definition of “violence”. As a result, women may be reluctant to end their relationship out of fear of not being believed or not meeting the “required” threshold of violence.
Sweden received a total of 41 recommendations from GREVIO and reported back to the Council of Europe on their implementation on 27 January 2022.[37] Among several proposed actions, It was stated that an inquiry should be set up to analyse whether there is a need for additional measures regarding the right to a residence permit for persons covered by the protection rule where a relationship has ended following violence on the alien, or the alien’s child, or some other serious violation of their liberty.
During the year, GREVIO proceeded with a follow-up thematic evaluation round of Sweden. A number of civil society organisations submitted a shadow report in November 2023, where the Swedish Refugee Law Center was a contributing organisation with regards to asylum-seeking and migrant women.[38] GREVIO reports and adoption of recommendations will be published during 2024.
As mentioned above, on 1 December 2023, restrictions were introduced on the possibility for both adults and children to be granted a residence permit on humanitarian grounds. Under this provision adults could previously also be granted a residence permit if they had resided in Sweden with a residence permit for a longer period of time but did not meet the requirements for a permanent residence permit and there were no other grounds for an extended residence permit. Explicitly mentioned in the preparatory work was the situation when a temporary residence permit had been granted under Chapter 5, Section 16 of the Aliens Act after a relationship has ended, e.g., because the foreigner had been subjected to violence or other serious violation.
Questions of concern that were, inter alia, further highlighted by CEDAW in its observations in November 2021 concerned the availability of specialized, inclusive and accessible shelters for women and girls who were victims of gender-based violence, taking into account their specific needs. There was also concern regarding the identification and protection of women and girls being trafficked for purposes of sexual exploitation, forced labour or forced criminal activities, and the presence of preventive measures concerning them.
The Migration Agency can offer an asylum seeker who has been subjected to or threatened with violence accommodation in another location, and also mark the address as confidential. However, the Migration Agency cannot offer sheltered housing. This must according to the Migration Agency be offered under municipal auspices.[39] (see also Reception of women).
A government inquiry from 2017 highlighted that there are ambiguities regarding which principal is responsible for ensuring that asylum seekers have access to sheltered housing, the Migration Agency or the Social services.[40] The Istanbul Convention states that the provisions of the Convention (e.g. access to sheltered accommodation) apply regardless of the victim’s status as a migrant, refugee or other status. In light of the above, the inquiry suggested that the Social Welfare Board’s responsibility for protected housing for asylum seekers and others needs to be clarified through legislative changes.
A law proposal is to be presented with the aim of introducing sheltered housing as a new form of placement in the Social Services Act (2001:453). However, although included in the initial proposal prepared by the inquiry, in the current remit to the Council on Legislation asylum seeking women are excluded. The City Missions in their referral highlighted that current regulations and practice whereby women at risk of violence are denied sheltered housing depending on their migration status is in violation of article 4 of the Istanbul Convention.[41]
A large part of the Swedish Migration Agency´s work against human trafficking and exploitation during the year focused on the situation in Ukraine. The information sheet in Ukrainian, Russian and English produced by the Swedish Gender Equality Agency was distributed and displayed at the Migration Agency’s application units, accommodation and service centers. In addition to the methodological support and routines that already exist, the Migration Agency’s staff were also able to take part in the Swedish Gender Equality Agency’s support for professionals, and have been urged to pay extra attention to indications of trafficking and exploitation in the handling of cases and meetings with applicants. During the autumn of 2022, a major training effort was initiated for all administrative staff at all of the authority’s detention centres. The training aimed to increase the ability to identify suspected victims and safeguard their rights, regardless of whether the Migration Agency or the Police Authority has made the decision on detention. In addition, new procedures, a screening list and a protocol to be used in cases of suspicion of human trafficking have been developed.[42]
In 2023, a total of 4 590 women (including girls) applied for asylum for the first time and the recognition rate was 40% (compared to 6 071 women and 44 % recognition rate in 2022 and 4 271 women and 38% recognition rate in 2021).[43]
The approval rate regarding subsequent applications increased compared to the previous year. A contributing factor was an updated legal position on Afghanistan from December 2022 to the effect that all girls and women as a main rule would be considered refugees. A total of 2 974 women applied for impediment to enforced return in 2023 and the approval rate was 21%, in comparison to 3 782 women in 2022 with an approval rate of 16 % and 4 782 women in 2021 with an approval rate of 8 %.[44]
Vulnerability questions pertaining to LGBTQI+ asylum seekers
In November 2020, RFSL published a report[45] in which they had examined more than 2,000 asylum decisions from the Migration Agency and judgments from the Migration Courts in LGBTQI+ cases during the period 2012–2020. The report finds that that several explicit requirements are put upon the asylum seeker by the migration authorities within the credibility assessments in LGBTQI+ cases and that the migration authorities have a number of preconceptions about and expectations on LGBTQI+ people, that have a great impact on whether or not asylum seekers are considered as having made their claims credible. Asylum seekers are expected to have gone through an inner process leading up to their realisation about their sexual orientation, gender identity or gender expression. They are expected to have felt, or at least reflected upon, feelings such as a sense of being different, stigma and shame. The requirements are based on the erroneous and stereotypical notion that LGBTQI+ people share certain universally common experiences that can be investigated and assessed. LGBTQI+ people eligible for protection who don’t share or can describe these experiences are deemed non-credible. The report also found that late disclosure of LGBTQI+ asylum claims are often deemed non-credible and non-reliable. According to the report, the migration authorities’ requirements lack support in the Swedish Aliens Act and contravene the Migration Agency’s judicial guidelines, UNHCR’s guidelines, EU Directives, and the European Court of Justice’s case law.
The Swedish Migration Agency had a dialogue with RFSL and RFSL Youth during the year 2022. According to the Migration Agency, due to the criticism in RFSL’s report they continued the work on skills development, including through training modules from the EUAA and internal courses on norm-conscious approach and equal treatment. Within the administrative support for decision writing, a new section was published on writing more understandable decisions in LGBTQI+ cases with a focus on factual and objective justifications.[46]
In 2023, RFSL published a follow-up report.[47] Some positive changes were noted, for instance a few positive rulings. It was also noted by RFSL that the Swedish Migration Agency has started a process of change in order to improve decision-making where the conclusions of the previous report are taken into account, According to the report, the widespread confusion of the various legal grounds for asylum, sexual orientation, gender identity and gender expression seems to have decreased somewhat and indicates increased knowledge. However, the criticism put forward in the report from 2020 was reiterated.
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.
Exemption from special procedures
When implementing the Asylum Procedures Directive, Sweden saw no need to change or modify existing legislation, due to the new Article 24 on applicants in need of special procedural guarantees, even though many authorities and organisations, including the Migration Agency, Swedish Red Cross and UNHCR, saw a need to do so.[48]
Unaccompanied children and other vulnerable groups are not per se exempted from the accelerated procedure, although individual assessments of the appropriate track to be applied may be made continuously. “Track 4” may be applied to an unaccompanied child who has an unfounded claim and who can be accommodated in reception facilities in the country of origin.
[1] Information provided by the Migration Agency, February 2023.
[2] Migration Agency, Rutin: Ta ställning till särskilda behov, initialt and Rutin: Insatser för asylsökande med särskilda behov.
[3] Swedish Migration Agency, ‘Annual Report 2023’, Dnr: 1.3.2-2024-2238, 22 February 2024, available in Swedish at: https://tinyurl.com/Arsredovisning2023.
[4] Migration Agency, ‘Människohandel. Information till dig som är god man för ensamkommande barn.’; available in Swedish at: https://tinyurl.com/3keyuj3n.
[5] Migration Court of Appeal, Decision MIG 2022:4, 31 May 2022, available in Swedish at: https://bit.ly/3zsrkON.
[6] Migration Agency; Rättsligt ställningstagande, Motsättningar mellan asylsökande barn, god man, offentligt biträde och vårdnadshavare, RS/060/2021, 21 April 2021, available in Swedish at: https://bit.ly/3I0zfXG.
[7] Swedish Government Official Report SOU 2023:40, Förbättrade möjligheter för barn att utkräva sina rättigheter enligt barnkonventionen, 23 August 2023, available at: https://bit.ly/3I2M0Ru.
[8] Swedish Government Official Report, SOU 2016:19 Barnkonventionen blir svensk lag. Available in Swedish at: https://bit.ly/3I2M0Ru ; Swedish Government Official Report, SOU 2020:63, Barnkonventionen och svensk rätt. Available in Swedish at: https://bit.ly/4bIymR6
[9] Lag (2018:1197) om Förenta nationernas konvention om barnets rättigheter, available at: https://bit.ly/34PnIdJ.
[10] Government Bill, prop. 2017/18:186 Inkorporering av FN:s konvention om barnets bästa, 20 March 2018, available in Swedish at: https://bit.ly/3wkgBYb, 95f.
[11] Migration Agency, Rättsligt ställningstagande, Prövning av barns bästa, 009/2020, 24 June 2020, available in Swedish at: https://bit.ly/3SFwG25
[12] Migration Agency; Rättsligt ställningstagande, Att höra barn, 010/2020, 24 June 2020, available in Swedish at: https://bit.ly/3qe4Tbz.
[13] Migration Agency, Tematisk kvalitetsuppföljning avseende asylsökande barn i familj, dnr: 1.3.4-2022-26331, 19 December 2022, available in Swedish at: https://bit.ly/3IFysvt.
[14] Swedish Refugee Law Centre, ‘Migrationsverkets rapport visar stora brister i prövningen av asylärenden som rör barn i familj’, 4 May 2023, available in Swedish at: https://tinyurl.com/j3ymsrup
[15] Migration Agency, ’Kvalitetsuppföljning asylsökande barn, del 1, enkätundersökning om hur barnets bästa och barnets rätt att uttrycka sin åsikt tolkas och tillämpas’, dnr: 1.3.4-2022-26331, November 2021, available in Swedish at: https://bit.ly/3IFysvt.
[16] Information provided by the Migration Agency in an email 14 February 2024.
[17] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023-2262, available in Swedish at: http://bitly.ws/AUE8.
[18] Migration Agency, Rättslig kommentar, Tolkning av EU-domstolens dom C-441/19, RK/002/2022, available in Swedish at: https://bit.ly/3ZCams2.
[19] UNICEF, Barnkonventionen som lag i praktiken – En granskning av domar från 2020, 2021, available in Swedish at: https://bit.ly/3wcj7h6.
[20] Migration Court of Appeal, Decision MIG 2020:24, 22 December 2020, available at: https://bit.ly/3KSnC4m.
[21] Migration Court of Appeal, Decision MIG 2021:18, 17 December 2021, available at: https://bit.ly/3tgs4Ei.
[22] Migration Court of Appeal, Decision UM 3741-22, 17 February 2023
[23] Migration Court of Appeal, Decision UM 6238-23, October 2023
[24] Hör barnens röst, Appendix 1: Report from Civil Society Organisations working with Child Rights, 2022, available in English at: http://bit.ly/3ZeTuYF.
[25] Recommendations, ”Report from Civil Society Organisations working with Child Rights”, August 2022, available in English at: http://bit.ly/41JXZfs.
[26] Barnombudsmannen, FN:s konvention om barnets rättigheter, Tillägsrapport Sverige, 15 augusti 2022. LOIPR220927, available at: http://bit.ly/3mrkW6W.
[27] Concluding observations on the combined 6th and 7th periodic reports of Sweden, 7 March 2023, available in English at: https://tinyurl.com/44srwend.
[28] Government Bill 2013/14:216, pp. 18–19.
[29] Emma Asplund and Sophie Sjöqvist (2019). Manligt nätverk, available in Swedish at: https://bit.ly/3sYZ2WO.
[30] CEDAW network, Kvinnor i Sverige 2021. En granskning av hur Sverige lever upp till kvinnokonventionen, available in Swedish at: https://bit.ly/3q9E8oD.
[31] CEDAW network; WOMEN IN SWEDEN 2021 – A review of Sweden’s compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), available at: https://bit.ly/3KUF88q.
[32] CEDAW, Concluding observations on the tenth period report of Sweden, CEDAW/C/SWE/CO/10, 24 November 2021, available at: https://bit.ly/400WKrm.
[33] Swedish Refugee Law Center, ‘Kvinnor i asylprocess – vikten av ett genusperspektiv’, 8 March 2023, available in Swedish at: https://bit.ly/4bIzPqA.
[34] Swedish Migration Agency, Legal position RS/089/2021, Prövning av skyddsbehov m.m. för medborgare från Afghanistan, last updated 27 November 2023, available in Swedish at: https://bit.ly/3wl2Vw8.
[35] For further information see AIDA, Country Report Sweden, 2021 Update, May 2022, available at: https://bit.ly/3R31wRd, 55.
[36] GREVIO, Baseline Evaluation Report: Sweden, 21 January 2019, available at: https://bit.ly/3riG6lu; 59-61.
[37] The Swedish Government’s report on the implementation of the recommendations; available in English at http://bit.ly/3K4uv3V.
[38] Shadow Report: GREVIOs first thematic evaluation of Sweden: Building trust by delivering support, protection and justice, available at: https://bit.ly/49hnI2i.
[39] Migration Agency, Rutin: Skyddat boende/ skyddad adress/ sekretessmarkering för asylsökande utsatta för våld eller hot om våld; Rättsutredning angående Migrationsverkets ansvar för frågor rörande så kallat skyddat boende, dnr 1.3.4 -2018-38994.
[40] Swedish Government Official Report, SOU 2017:112, Betänkande av Utredningen om ett stärkt barnrättsperspektiv för barn i skyddat boende, 2017, available in Swedish at: https://bit.ly/3ZEYIg4.
[41] Sveriges Stadsmissioner, Yttrande över lagrådsremiss “Ett fönster av möjligheter – stärkta rättigheter för barn och vuxna i skyddat boende”, available in Swedish at: https://bit.ly/42DX8Op.
[42] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023-2262, available in Swedish at: http://bitly.ws/AUE8.
[43] Migration Agency, Annual Report 2023, Dnr: 1.3.2-2024-2238, available in Swedish at: https://tinyurl.com/Arsredovisning2023.
[44] Ibid.
[45] RFSL, Avslagsmotiveringar i HBTQI-asylärenden, available in Swedish, with a summary in English, here: https://bit.ly/3fCSklM.
[46] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023-2262, available in Swedish at: http://bitly.ws/AUE8.
[47] RFSL, Avslagsmotiveringar i hbtqi-asylärenden – en uppföljning av rättsutredningen, 2023, available in Swedish at: https://tinyurl.com/25dstcpj.
[48] Genomförande av det omarbetade asylprocedurdirektivet (Travaux préparatoires to the transposition of the recast Asylum Procedures Directive), 2016/17:17, available in Swedish at: https://bit.ly/3I4jL58.