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 taken given in the guideline include prolonging the procedure to allow time for the applicant to put forward his or her 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. Sometimes the applicant is not given enough time to do so.
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]
According to Save the Children and Stockholm City Mission the incorporation had not yet resulted in any improvements for children in asylum procedures as of November 2020.[6]
In 2021 UNICEF published a review of court cases from 2020.[7] It was 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.
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. [8]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.[9] 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 he or she does not wish to be heard. However, the legal position is only a document guiding the personnel at the Migration Agency. 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. A quality follow-up of the processing of children in the asylum process will be presented in 2022.[10]
On 22 December 2020, the Migration Court of Appeal in a precedent ruling linked the provision of the Aliens Act on the best interests of the child and the CRC in relation to the restrictions in Section 11 of the Temporary Act. The case concerned a 14-year-old child born and raised in Sweden.[11] The Court found that her expulsion to Lebanon was in breach of the CRC and that it was disproportionate given the child’s strong connection to Sweden.
On 17 December 2021, the Migration Court of Appeal issued another important ruling regarding the assessment of the best interest of the child.[12] The ruling concerned a three-year-old boy with a serious health condition. The ruling concerned the lower threshold for children under the provision of particularly distressing circumstances. At the time of the assessment by the Migration Agency and the Migration Court, the Temporary Act was still in force, and there was an additional requirement that any expulsion would also be in violation of a Swedish convention obligation. The Migration Court of Appeal in its ruling clearly set out the investigative duty of the migration authorities. In the assessment of the best interest of the child, it was concluded that it was in their best interest to stay in Sweden to receive medical care. In the proportionality assessment, the Court ruled that no other interest could be given more weight. The boy was thus granted a temporary residence permit.
As mentioned in the previous AIDA report, an issue that was raised in 2019 by the University of Uppsala with the assistance by 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 respective 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.[13]
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. One of the comments from the GREVIO refers to the Aliens Act which foresees that permanent residence shall be granted to the asylum seeker where the relationship has ended following violence on the alien or the alien’s child or some other serious violation of their liberty or peace (Chapter 5 Section 16). However, there are some limitations on the definition regarding “violence” in practice. First, there is a focus on whether the relationship ended “primarily” due to violence and the relationship must be of a “serious, long term nature”. Second, when referring to violence, the violence must be “serious” or consist of “repeated incidents of degrading treatment”. In practice, a single incident of physical violence would not amount to the threshold required. Similarly, emotional, psychological financial abuse is not considered to reach the threshold of violence required in practice, according to information collected by women’s organisations and the Swedish Migration Agency. 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.[14]
Regarding the restrictions imposed by the Temporary Act, GREVIO recalls the principle of non-discrimination which requires the implementation of the provisions of the Istanbul Convention without discrimination on the basis of, inter alia, migrant or refugee or other status. GREVIO urges the Swedish authorities to lift any exceptions set out in the Law on Temporary Restrictions to obtaining a residence permit in Sweden in as far as they limit women’s right to a residence permit in accordance with Chapter 5, Section 3 of the Swedish Aliens Act.
The restrictions introduced by the Temporary Act ceased to exist when the new legislation entered into force in July 2021. GREVIO further noted limitations regarding the gender-specific interviews with case manager, i.e. the difficulty to build trust and be able to tell traumatic experiences. Additionally, it was noted by GREVIO that women are unaware of the importance and relevance that their accounts of gender-based violence and persecution may have on the asylum procedure.[15]
Sweden has received a total of 41 recommendations from GREVIO and reported back to the Council on Europe on their implementation on January 27 2022.[16] 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.
During the year, 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. [17] The CEDAW network sent a joint submission to the Committee. [18] 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. [19]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.
In 2020, a total of 5,801 women applied for asylum and the recognition rate for women was 34%.[20]
In 2021, a total of 4,216 women applied for asylum and the recognition rate for women was 38%.[21]
In November 2020, RFSL published a report[22] 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. 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.
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.[23]
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, August 2017.
[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,p. 95 f. Only available in Swedish at: https://bit.ly/3wh7sO3.
[6] FRA. Migration Bulletin: Key Fundamental Rights Concerns, November 2020, available at: https://bit.ly/3cWUQBV, 11.
[7] UNICEF, Barnkonventionen som lag i praktiken – En granskning av domar från 2020. Only available in Swedish at: https://bit.ly/3wcj7h6
[8] Migration Agency, Rättsligt ställningstagande, Prövning av barns bästa, 009/2020, 24 June 2020; available at: https://bit.ly/3KOIJEP
[9] Migration Agency; Rättsligt ställningstagande, Att höra barn, 010/2020, 24 June 2020, , available at: https://bit.ly/3qe4Tbz
[10] Swedish Migration Agency, Annual Report 2021, Dnr: 1.3.2-2021-1600, page 105
[11] Migration Court of Appeal, Decision MIG 2020:24, 22 December 2020, available at: https://bit.ly/3KSnC4m
[12] Migration Court of Appeal, Decision MIG 2021:18, 17 December 2021, available at: https://bit.ly/3tgs4Ei
[13] Emma Asplund and Sophie Sjöqvist (2019). Manligt nätverk, available in Swedish at: https://bit.ly/3sYZ2WO.
[14] GREVIO, Baseline Evaluation Report: Sweden, 21 January 2019, available at: https://bit.ly/3riG6lu, 57-58.
[15] GREVIO, Baseline Evaluation Report: Sweden, 21 January 2019, available at: https://bit.ly/3riG6lu; 59-61.
[16] The Swedish Governments report on the implementation of the recommendations; available in English at https://bit.ly/3JmeKUu
[17] CEDAW-nätverket, Kvinnor i Sverige 2021. En granskning av hur Sverige lever upp till kvinnokonventionen, available at: https://bit.ly/3q9E8oD
[18] CEDAW- nätverket; summary in English : 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
[19] CEDAW/C/SWE/CO/10, available at: https://bit.ly/3CNlIzo.
[20] Swedish Migration Agency, Annual Report of 2020, 39.
[21] Swedish Migration Agency, Annual Report of 2021, Dnr: 1.3.2-2022-2199, available at: https://bit.ly/3KTSUYy, 55.
[22] RFSL, Avslagsmotiveringar i HBTQI-asylärenden, available in Swedish, with a summary in English, here: https://bit.ly/3fCSklM.
[23] 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.