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 Asylum Support Office (EASO) training modules, and those who have completed this training are designated as case workers especially for unaccompanied children. Similar courses have been carried out and instructions issued in relation to women refugee claimants and claimants with LGBTQI+ grounds.[1]
Examples of measures given in the guideline 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.
Vulnerability questions pertaining to children
National inquires 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.[3] On 1 January 2020, the UN Convention on the Rights of the Child (CRC) was incorporated into Swedish national law and entered into force.[4] 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.[5]
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.[6] Sweden has 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 Migration Agency, however, has revised their legal position on hearing children.[7] The provision must, according to the 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 Migration Agency, with no particular legal force. The Swedish Migration Agency reported that, during the year, they continued their work to increase competence regarding the rights of the child as well as developing updated support material on key issues related to children’s cases in all processes.
In 2021 UNICEF published a review of court cases from 2020 pertaining to the Convention on the Rights of the Child.[8] 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,[9] and regarding three-year-old boy with a serious health condition.[10] 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.
Sweden is currently being examined by the UN Committee on the Rights of the Child on how well Sweden lives up to the CRC. The Swedish government submitted its report in autumn 2021. 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 Committee as a basis for the review. 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.[11] 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.[12] The Ombudsman for Children also submitted a report to the Committee.[13]
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. The Government refers to the fact that the Temporary Act expired on 20 July 2021. However, permanent legislative amendments entered into effect instead, largely based on the temporary legislation from 2016. The inquiry failed to analyse the consequences from a children’s rights perspective. 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 will issue its recommendations and comments to Sweden during 2023.
An internal quality review of the processing of accompanied children in the asylum process was presented by the Migration Agency in December 2022.[14] 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. In the majority of the cases the outcome – i.e. if the child´s asylum claim has been approved or rejected – may according to the report be approved. 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.
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.
According to the Migration Agency, the findings of the reports will now be studied by the parts of the authority that are involved in the examination of asylum decisions, after which measures will be taken to remedy the shortcomings.
During the year, 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 shortcomings 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.[16]
On 18 March 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.[17]
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 SMA 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.[18]
On 6 December 2022, the Swedish Migration Agency in an updated legal position regarding applicants from Afghanistan[19] 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 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 last year´s AIDA report.[20] One of the comments from GREVIO referred to 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). Previously, a permanent residence permit could be granted in such a situation, but following the changes in Swedish migration legislation, residence permits are now as a main rule temporary. 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.
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.[21]
Sweden received a total of 41 recommendations from GREVIO and reported back to the Council on Europe on their implementation on 27 January 2022.[22] In the report, the government referred to, inter alia, the action programme for the period 2021-2023, which is included in the national strategy to prevent and combat men’s violence against women. Among several proposed actions, a national competence centre regarding honour-related violence and oppression is to be established. A law proposal will be presented with the aim of introducing sheltered housing as a new form of placement in the Social Services Act (2001:453), with a licensing obligation and increased quality requirements, as well as proposals to strengthen the children’s rights perspective in sheltered housing. An inquiry shall 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.
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.[23] The CEDAW network sent a joint submission to the UN Committee.[24] 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.[25] 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.
Questions of concern that were, inter alia, further highlighted by the Committee 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. A further concern was the low number of investigations and prosecutions of perpetrators.
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.[26] (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.[27] 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.[28]
A large part of the 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.[29]
In 2022, a total of 5,142 women applied for asylum and the recognition rate for women was 43% (compared to 5,159 women and 34% recognition rate in 2020, and 4,243 women and 38% recognition rate in 2021).[30]
Vulnerability questions pertaining to LGBTQI+ asylum seekers
In November 2020, RFSL published a report[31] 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 a number of 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. RFSL is currently working on a follow-up report, yet to be published.
The Swedish Migration Agency had a dialogue with RFSL and RFSL Youth during the year 2022. Due to the criticism in RFSL’s report the Migration Agency 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.[32]
New caselaw relating to procedural guarantees
The Migration Court of Appeal ruled in May 2022 in case MIG 2022:4,[33] 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.
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.[34]
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 Government Official Report, SOU 2016:19 Barnkonventionen blir svensk lag. Available in Swedish at https://bit.ly/3ImKaIZ., Swedish Government Official Report, SOU 2020:63, Barnkonventionen och svensk rätt. Available in Swedish at https://bit.ly/3Jo3YNn.
[4] Lag (2018:1197) om Förenta nationernas konvention om barnets rättigheter, available at: https://bit.ly/34PnIdJ
[5] Government Bill, prop. 2017/18:186 Inkorporering av FN:s konvention om barnets bästa, available in Swedish at: https://bit.ly/3wh7sO3, 95f.
[6] Migration Agency, Rättsligt ställningstagande, Prövning av barns bästa, 009/2020, 24 June 2020, available in Swedish at: https://bit.ly/3KOIJEP.
[7] Migration Agency; Rättsligt ställningstagande, Att höra barn, 010/2020, 24 June 2020, available in Swedish at: https://bit.ly/3qe4Tbz.
[8] UNICEF, Barnkonventionen som lag i praktiken – En granskning av domar från 2020, 2021, available in Swedish at: https://bit.ly/3wcj7h6.
[9] Migration Court of Appeal, Decision MIG 2020:24, 22 December 2020, available at: https://bit.ly/3KSnC4m.
[10] Migration Court of Appeal, Decision MIG 2021:18, 17 December 2021, available at: https://bit.ly/3tgs4Ei.
[11] Hör barnens röst, Appendix 1: Report from Civil Society Organisations working with Child Rights, 2022, available in English at: : http://bit.ly/3ZeTuYF.
[12] Recommendations, ”Report from Civil Society Organisations working with Child Rights”, August 2022, available in English at: http://bit.ly/41JXZfs.
[13] Barnombudsmannen, FN:s konvention om barnets rättigheter, Tillägsrapport Sverige, 15 augusti 2022. LOIPR220927, available at: bit.ly/3mrkW6W
[14] Migration Agency, Tematisk kvalitetsuppföljning avseende asylsökande barn i familj, dnr: 1.3.4-2022-26331, 19 December 2022, available at: http://bit.ly/3kHUZjf.
[15] Inquiry, available at: http://bit.ly/3ZjrLpI.
[16] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023-2262, available in Swedish at: http://bitly.ws/AUE8.
[17] Migration Agency, Rättslig kommentar, Tolkning av EU-domstolens dom C-441/19, RK/002/2022, available in Swedish at: https://bit.ly/3ZCams2.
[18] Emma Asplund and Sophie Sjöqvist (2019). Manligt nätverk, available in Swedish at: https://bit.ly/3sYZ2WO.
[19] SMA, Legal position RS/089/2021, Prövning av skyddsbehov m.m. för medborgare från Afghanistan, last updated 24 January 2023, available in Swedish at: http://bit.ly/3zaBcw6.
[20] For further information see AIDA, Country Report Sweden, 2021 Update, May 2022, available at: https://bit.ly/3R31wRd, 55ff.
[21] GREVIO, Baseline Evaluation Report: Sweden, 21 January 2019, available at: https://bit.ly/3riG6lu; 59-61.
[22] The Swedish Government’s report on the implementation of the recommendations; available in English at http://bit.ly/3K4uv3V.
[23] CEDAW network, Kvinnor i Sverige 2021. En granskning av hur Sverige lever upp till kvinnokonventionen, available at: https://bit.ly/3q9E8oD.
[24] 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.
[25] CEDAW, Concluding observations on the tenth period report of Sweden, CEDAW/C/SWE/CO/10, 24 November 2021, available at: https://bit.ly/400WKrm.
[26] 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.
[27] Swedish Government Official Report, SOU 2017:112, Betänkande av Utredningen om ett stärkt barnrättsperspektiv för barn i skyddat boende, 2017, available at: https://bit.ly/3ZEYIg4.
[28] Riksföreningen Sveriges Stadsmissioner, Yttrande över lagrådsremiss “Ett fönster av möjligheter – stärkta rättigheter för barn och vuxna i skyddat boende”, available at: https://bit.ly/3F1o2Fk.
[29] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023-2262, available in Swedish at: http://bitly.ws/AUE8.
[30] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023-2262, available in Swedish at: http://bitly.ws/AUE8, 38.
[31] RFSL, Avslagsmotiveringar i HBTQI-asylärenden, available in Swedish, with a summary in English, here: https://bit.ly/3fCSklM.
[32] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023-2262, available in Swedish at: http://bitly.ws/AUE8.
[33] Migration Court of Appeal, Decision MIG 2022:4, 31 May 2022, available in Swedish at: https://bit.ly/3zsrkON.
[34] Genomförande av det omarbetade asylprocedurdirektivet (Travaux préparatoires to the transposition of the recast Asylum Procedures Directive), 2016/17:17, available at: http://bit.ly/2lRb9Cn.