Author
General (scope, grounds for accelerated procedures, time limits)
The law makes no express reference to “accelerated procedures”. However, the Swedish Migration Agency has established a dedicated track for two categories of cases:
- Manifestly unfounded claims (“Track 4A”) and
- Claims from nationalities with a recognition rate below 15% (“Track 4B”). The countries currently listed are: Albania, Algeria, Armenia, Belarus, Bolivia, Bosnia and Herzegovina, Brazil, Chile, Colombia, Cuba, Djibouti, Georgia, Great Britain, India, Israel, Kosovo, North Macedonia, Mexico, Mozambique, Morocco, Moldova, Mongolia, Montenegro, Peru, Philippines, Serbia, South Africa, Thailand, USA, and Vietnam.[1]
In 2023, 352 cases were decided on after having been processed under Track 4A, manifestly unfounded, and 1 ,515 cases were decided on after having been processed under Track 4B.[2] In 2022, 470 persons had their applications rejected as manifestly unfounded, up from 331 in 2021. These applications were processed under Track 4A.
Under the Aliens Act, there is a basis for handling manifestly unfounded claims in an accelerated procedure. The Swedish Migration Agency may issue an immediately enforceable return order “if it is obvious that there are no grounds for asylum and that a residence permit is not to be granted on any other grounds.”[3] Vulnerable groups are not exempted from the accelerated procedure.
The Migration Court of Appeal has ruled that the requirement of “manifestly unfounded” involves the ability to make a clear assessment regarding the right to a permit without any further examination.[4] The assessment should not be summary, by being solely based on the circumstance that the applicant has a certain nationality to which normally asylum is not being granted, for instance. The assessment of “manifestly” must always be based on the circumstances of the individual case.
In the CJEU ruling in A v Migrationsverket,[5] published on 25 July 2018, which concerns the interpretation of Articles 31(8)(b) and 32(2) of the recast Asylum Procedures Directive, the CJEU held that a Member State cannot rely on the rebuttable presumption under Articles 36 and 37 of the recast Asylum Procedures Directive in respect of the safe country of origin concept and subsequently find the application to be manifestly unfounded in accordance with Article 31(8)(b) without having fully implemented and complied with the procedures under the Directive relating to the designation of countries as safe countries of origin.
After the CJEU ruling in A v Migrationsverket, Sweden could no longer use the procedure for immediately expelling persons with manifestly unfounded claims on the basis that the applicant comes from a Safe Country of Origin, since Swedish national legislation did not include a list of safe countries of origin established in accordance with Annex I to the recast Asylum Procedures Directive duly notified to the Commission and the enactment of additional implementation rules and modalities. This changed in 2021 when Sweden introduced new legislation regarding asylum applications from persons from Safe Countries of Origin (see further information under Safe Countries of Origin).
A 2021 legal instruction by the Legal Unit of the Migration Agency[6] established that an expulsion with immediate effect should be considered in the following cases:
- The application is unrelated to the right of asylum;
- The application presents manifestly insufficient grounds for asylum;
- EU citizens and persons from safe countries of origin applying for asylum;
- The applicant has provided false information in all essential elements;
- If only health reasons are claimed.
Extenuating circumstances leading to access to the full procedure could be health reasons or cumulative grounds. The Swedish Migration Agency has updated its position on expulsion in such cases with immediate effect in its legal guidance, including in light of the abovementioned CJEU ruling in A v Migrationsverket as well as Gnandi.[7] The Migration Agency states in its guidance that the deadline for voluntary departure does not begin to run as long as the person has the right to remain and the person must also not be detained for removal purposes.
The time limit for a decision under the accelerated procedure is three months in all cases. If the time limit has not been respected the case will be dealt with in the regular procedure.
Personal interview
A personal interview is mandatory, as per a guideline decision of the Migration Court of Appeal.[8] There are no differences in the way the interview is carried out compared with the Regular Interview apart from the absence of a legal representative. During the interview the applicant is informed that their case is processed as a track 4 case and what it entails.[9]
Appeal
There is no difference in time limits for lodging appeals under the accelerated procedure compared to the regular procedure (see Regular Appeal). The same time limit of 3 weeks after the decision is notified applies.[10]
Previously, appeals against decisions taken in the accelerated procedure had no suspensive effect. In the meantime, the applicant could be removed by the police, in which case the appeal, if ever made, was abandoned. In fact, many applicants refrained from appealing and left voluntarily in order to avoid forced removal and being issued with a re-entry ban. After the change to Chapter 12 Section 8a in the Alien Act in 2021, the law provides that an appeal has automatic suspensive effect until the Migration Court has made a decision on whether the removal should be suspended pending the outcome of the appeal.[11]
The 2021 guidance of the Swedish Migration Agency clarifies that when appealing against decisions with immediate enforcement, a Migration Court must examine the issue of suspending enforcement. Enforcement cannot take place from the decision during the appeal process and up to the Migration Court’s examination of the issue of suspension, nor can enforcement measures be taken.[12]
Legal assistance
The Aliens Act states that there is no automatic obligation to provide legal counsel in manifestly unfounded cases, although this is possible in cases of vulnerability.[13] However, if the court is of the opinion that the case is not manifestly unfounded, then the court orders suspension of the expulsion order and legal counsel will be appointed. Such a case is referred back to the first instance if there is not sufficient information regarding material grounds for a permit to be granted. The difficulties with regard to access to legal assistance in the regular procedure are also applicable here (see Regular Procedure: Legal Assistance).
[1] Migration Agency, VÄGLEDNING Lista över länder och lägsta idkategorisering för sortering i spår 4B, Dnr: 1.2.2.2-2022-20585, 7 May 2021, revised 22 September 2022.
[2] Statistics provided by the Migration Agency’s statistical unit.
[3] Ch. 8, Section 19 Aliens Act. See also Ch. 12, Section 7 Aliens Act.
[4] Migration Court of Appeal, MIG 2006:7, UM 230-06, 31 October 2006; MIG 2010:22, UM 2244-10, 22 December 2010.
[5] CJEU, A v. Migrationsverket, Case C-404/17, Judgment of 25 July 2018, EDAL, available at: http://bit.ly/2Ubxvn6.
[6] Migration Agency, Rättsligt ställningstagande angående avvisning med omedelbar verkställighet till hemlandet inklusive säkra ursprungsländer, RS/071/2021, 25 maj 2021, available in Swedish at: https://bit.ly/3sKhpAZ.
[7] CJEU, Gnandi v Etat belge, C-181/16, 19 June 2018, EDAL, available at : https://bit.ly/2ITsDwX.
[8] Migration Court of Appeal, MIG 2007:4, UM 607-06, 22 January 2007.
[9] Observation based on practice by the Swedish Refugee Law Center
[10] Section 44, The Administrative Procedure Act (2017:900).
[11] Ch. 12, Section 8a Aliens Act.
[12] Migration Agency, Rättsligt ställningstagande angående avvisning med omedelbar verkställighet till hemlandet inklusive säkra ursprungsländer, RS/071/2021, 25 May 2021, available in Swedish at: https://bit.ly/3sKhpAZ
[13] Ch. 18, Section 1 Aliens Act. There do not seem to be particular fixed criteria of vulnerability in which legal counsel is ”automatically” given, rather it is a case by case assessment: Swedish Refugee Law Center and UNHCR, Rättssäkerheten och säkra ursprungsländer – En granskning av Migrationsverkets tillämpning av de nya bestämmelserna, December 2022, available in Swedish at: https://bit.ly/3j5MBcm.