Dublin

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Swedish Refugee Law Center Visit Website

The Dublin procedure was not suspended during COVID-19, with the exception of the two-week period in March 2020 when the Swedish Migration Agency suspended its activities. This means that the Migration Agency continued to issue and receive requests; as well as to receive and carry out transfers to countries which accepted Dublin returnees, albeit at lower levels due to travel restrictions and other applicable Covid-19 measures.

General

Dublin statistics: 1 January – 31 December 2022

Source: Information provided by the Migration Agency’s statistics unit. The numbers show the number of transfer decisions. Statistics on transfers actually implemented were not provided.

Source: Information provided by the Migration Agency’s statistics unit.

Source: Information provided by the Migration Agency’s statistics unit.

Application of the Dublin criteria

In 2022, Sweden issued 2,072 and received 3,747 requests under the Dublin Regulation. Sweden interprets the Dublin Regulation rules rather strictly and respects the hierarchy established by the Regulation. The Swedish Aliens Act refers to the Dublin Regulation rules but not in detail since the Regulation has direct effect in Swedish law.

All asylum seekers are fingerprinted if they are 14 years or older and checked both in the Eurodac and Visa Information System (VIS) databases. The top five countries of origin were Afghanistan, Syria, Iraq, Ukraine and Eritrea.[1] Children aged 6 and above are fingerprinted, but they will not be checked against any databases. If an asylum seeker refuses to be fingerprinted it can be interpreted as refusing to participate in the investigation on whether they have the right to stay in Sweden, which is a basis for detention.[2] The law does not authorise the use of force to take fingerprints.

In 2020, the Swedish government adopted two acts relevant to fingerprinting. The first act entered into force on 1 December 2020 and foresees that the Swedish Migration Agency, the Swedish Police and Sweden’s diplomatic missions abroad are allowed to process sensitive data under the Aliens Data Act (2016:27).[3] They are also authorised to test and develop the existing system of managing third-country nationals’ personal data. The second act entered into force on 28 December 2020 and amends the Aliens Act and the Act on the Schengen Information System (2000:344).[4] It foresees that third-country nationals will have to be fingerprinted and photographed at entry and exit for checks against the Schengen Information System (SIS). It also allows several authorities such as the Swedish Migration Agency, the Swedish Police, the Swedish Customs and the Coast Guards to take individuals’ photos and fingerprints for counter-checking against data in SIS.

The dependent persons’ and discretionary clauses

Sweden made 1 request based on the “humanitarian clause” (Article 17(2) Dublin Regulation) in 2022 and based on the “dependent persons’ clause” (Article 16 Dublin Regulation), and received 37  and 1 incoming requests on those grounds respectively.

Statistics regarding article 17(1) are limited are no formal decision to refrain from sending a take charge request and to examine the application in Sweden is taken.

Procedure

Track 5A deals with cases under the Dublin Regulation. These cases are not sent to the Distribution Unit but channelled immediately into this track. The Dublin Unit had 35 officials in 2022.[5]

If another member state is deemed to be responsible and a transfer decision is made, a combined notification and return interview is held with the applicant. The transfer decision is enforceable and transfer travel planning can begin immediately. In Track 5A, there are no ID issues to consider so the focus of the Migration Agency is on the applicant’s attitude to transfer and the availability for executing the transfer.

The applicant is initially informed in writing and orally that a Eurodac or a VIS hit has been registered and is given the opportunity to register any objections to being sent to the assigned country. A decision is then made to formally transfer the person and this decision is communicated in person by the Migration Agency to the applicant. The applicant has to sign that this decision has been received. The reception officer then discusses the practicalities of the transfer to the designated country and indicates how soon this could take place. If the applicant appears willing to cooperate, a date is later fixed for the transfer. If the applicant does not cooperate, then the case will be handed over to the police for an enforced transfer. A decision is usually also made to reduce the daily allowance to the asylum seeker because of their unwillingness to cooperate. The applicant is informed of the right to appeal in person and the right to write it in their own language if need be but also told that an appeal will not have a suspensive effect unless the Migration Court makes a different assessment.[6]

The Migration Agency has produced information sheets in several languages outlining the mechanisms of the Dublin Regulation (see Provision of information on the procedure), although technical issues such as the effects of the VIS system are not easily comprehensible to asylum seekers. The asylum seeker receives a copy of these and later a copy of the acceptance by the other Member State. The asylum seeker is informed that a request is being made and about the evidence the request is based on.

Individualised guarantees

The Migration Agency does not seek individualised guarantees prior to a transfer.[7]

Transfers

Most Dublin transfers take place on a voluntary basis. Asylum applicants are not detained when they are being notified that another country is responsible for assessing their asylum application. However, Dublin cases are accommodated in facilities that are close to an airport or moved to such accommodation in connection with the impending transfer, instead of allowing them to settle initially anywhere in Sweden.

In 2022 Sweden received 3,747 Dublin incoming requests and issued 2,072 outgoing requests to other Dublin States. A total of 590 Dublin transfers were carried out to another Dublin country in 2022.[8]

The average processing time for all Dublin cases in 2022, i.e. until a transfer decision was issued, was 64 days, up from 46 in 2021, 49 in 2020, and 58 in 2019.[9]

Personal interview

According to a precedent-setting ruling by the Migration Court of Appeal,[10] all Dublin cases are subject to a personal interview conducted by the Migration Agency through an interpreter but without the presence of legal counsel. However, in the case of an unaccompanied child, the guardian is present and legal counsel can be appointed. The interview does not go into the asylum grounds in any detail but a brief outline of flight reasons is made in most of the interview documentation.

Despite COVID-19, the Swedish Migration Agency was able to carry out interviews in person, with some exceptions in Southern Sweden before they initiated and received protective equipment to protect their staff and asylum applicants.[11] In 2020, a total of 108 asylum interviews were carried out in the context of the Dublin procedure, out of which 44 were carried out by video link.[12] In comparison, 62 out of a total of 164 interviews were carried out by video link in 2021.[13] In 2022, a total of 99 asylum interviews were carried out in the context of the Dublin procedure, out of which 18 were carried out by video link.[14]

Questions are asked about relatives in other EU countries, previous stays in EU countries, the health condition of the applicant, any objections to being sent to the responsible EU Member State, and attitude towards leaving voluntarily.

A transcript of the interview is made but not normally communicated to the asylum seeker since it is only in Swedish. The transcript and other documents regarding an applicant’s asylum case can be requested. If there are close relatives in another EU country, Swedish authorities take no action to inform that country of the presence of a relative in Sweden but await a request from the other country regarding the desirability of family reunification and written consent from the family present in Sweden to be reunited.

Appeal

An application will be dismissed as inadmissible when the Dublin Regulation applies.[15] In Dublin cases, there is no legal counsel automatically appointed at first instance (except for unaccompanied children), so the asylum seeker must either appeal alone or seek the support of friends or NGOs. The appeals procedure is no different from the appeal system that applies in the Regular Procedure: Appeal.

In line with Article 27(3)(c) of the Dublin III Regulation, if an applicant requests for their appeal to have suspensive effect, the transfer is automatically suspended until the Court decides on whether to suspend the implementation of the transfer.[16] Moreover, appeals in Dublin cases are often expedited quickly by the Migration Court and the Migration Court of Appeal.[17] The appeal body does not take into account the recognition rates in the responsible member state when reviewing the Dublin decision.[18]

The Migration Court of Appeal made a reference for a preliminary ruling to the CJEU to clarify whether an applicant is entitled to challenge a Dublin transfer solely on the basis of systemic deficiencies or also on other grounds i.e. relating to the application of the responsibility criteria. The CJEU ruled on 7 June 2016 and found that in order for a correct application of the responsibility determination procedure under the Dublin III Regulation to take place, the applicant must be able to contest a transfer decision and invoke an infringement of the rule set out in Article 19(2) of the Regulation, i.e. where the applicant provides evidence that he she has left the territory of one Member State, having made an application there, for at least three months and has made a new asylum application in another Member State.[19]

On 26 February 2020, the Migration Court of Appeal found in the case MIG 2020:4 that a decision by the Migration Agency to not take charge of an asylum seeker upon request from another member state cannot be appealed.[20] In the present case, the Migration Court of Appeal also rejected a request from the individual concerned that the Court should request a preliminary ruling from the Court of Justice of the European Union, despite the fact that other national courts in Germany and the UK have found that asylum seekers have a right to appeal rejections of take charge requests.[21] The Court found that the decision not to take charge primarily concerns the States involved, not the individual, at least not directly in a way that would entail an assessment of potential violations of their freedoms or rights.

Legal assistance

The Migration Court of Appeal has in the case MIG 2014:29 expressed that the Migration Agency can appoint a public counsel in Dublin cases, but that it can also consider that there is no need for a counsel. In the same case, the Court also expressed that a public counsel can be appointed at the second instance, in case the appeal has a reasonable prospect of success. In practice, legal counsel is not made available at first instance in Dublin cases, and the Migration Courts are also very restrictive in appointing public counsels.[22]

The Migration Court can appoint legal counsel in Dublin appeals but does take into account whether the grounds for appeal raise issues that could lead to a change in the decision. The difficulties with regard to access to legal assistance in the regular procedure are also applicable here (see Regular procedure: Legal assistance).

Suspension of transfers

To Hungary

In March 2019, the Migration Agency announced it considers that there are well-founded reasons to assume that there are currently such systemic deficiencies in the asylum procedure and reception conditions in Hungary that transfers there would engage Article 3(2) of the Dublin Regulation. These deficiencies entail a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.

As far as the authors are aware, no persons have been transferred to Hungary since 2018.

In November 2022, the Migration Agency issued a new legal guidance note regarding Dublin transfers to Hungary.[23] The Migration Agency currently do not consider that such systemic deficiencies in the asylum procedure and reception conditions in Hungary exists that transfers would engage Article 3(2) of the Dublin Regulation. The Migration Agency however consider that there are serious doubts on whether an asylum seeker, after transfer to Hungary, can gain access to the asylum procedure. Therefore, the Migration Agency assesses that no transfers to Hungary can be done until further notice.

The Migration Agency do continue to make the request and make the transfer decision if Hungary is determined to be the responsible Member State. However, the transfer decisions may not be enforced as long as the conditions in Hungary remains. All transfer decisions to Hungary in accordance with the Dublin regulation are therefore to be suspended until further notice.

To Greece

In February 2018, the Migration Agency decided to reinstate transfers to Greece. The decision was made with reference to the recommendation from the European Commission, which was issued almost a year earlier.[24] The Migration Agency does not take any particular measures with regard to transfer to Greece, but they do take into consideration the recommendations from the Commission.[25] In 2022, 5 take charge decisions and 2 take back decision were issued to Greece.[26]

The situation of Dublin returnees

Dublin returnees with a final negative decision in Sweden are normally taken into custody on arrival and measures are taken to facilitate their removal. If their case is still pending in Sweden and there is no final negative decision, then they are placed in an accommodation centre near a point of departure and continue the procedure in their ongoing case.

During 2018, the Aliens Act was amended concerning responsibility for the reception of Dublin returnees which means that the police authority takes over the responsibility from the Migration Agency regarding the reception of persons who have been accepted in accordance with the Dublin Regulation when there is a legally enforceable decision on cancellation or expulsion.[27]

Transfers to Sweden for “take back” cases with a legally enforceable removal order in Sweden are not automatically provided with accommodation by the Migration Agency or the Police on arrival if they are unwilling to return voluntarily to their home country. This applies also to families with children. Since the changes to the Law on the Reception of Asylum Seekers (LMA) in 2016 only families with minor children can be allowed to stay in this accommodation while the removal order is pending and after the period for voluntary return has passed. Families who leave this accommodation for another EU country and are returned according to the Dublin Regulation have no right to re-access accommodation from the Migration Agency. There have been cases that have come to the knowledge of FARR of Afghan families returned from Germany and France who are forced into destitution unless they agree to return to Afghanistan voluntarily. In the latter case they can access accommodation and obtain a daily allowance.

[1] Information provided by the Swedish Migration Agency.

[2] Chapter 10 Section 1 Aliens Act.

[3] Government. Regerings proposition 2020/21:5. Behandling av känsliga personuppgifter i testverksamhet enligt utlänningsdatalagen, available at: https://bit.ly/3jYyKR4.

[4] Government. Regeringens proposition 2020/21:6. Ändrade bestämmelser om fotografier och fingeravtryck i SIS II-regelverket, available at: https://bit.ly/2ZqSSlB.

[5] Information provided by the Swedish Migration Agency.

[6] Chapter 12 Section 9 a Aliens Act.

[7] Information provided by the Migration Agency, August 2017.

[8] Information provided by the Migration Agency’s statistics unit.

[9] Migration Agency, Monthly statistical report for December 2022, 15.

[10] Migration Court of Appeal, MIG 2007:4, UM 607-06, 22 January 2007, available at: http://bit.ly/2oZzsl1.

[11] Information provided by the Swedish Migration Agency, March 2020.

[12] Information provided by the Swedish Migration Agency, March 2020.

[13] Information provided by the Swedish Migration Agency.

[14] Information provided by the Swedish Migration Agency, March 2023.

[15] Ch. 5, Section 1c Aliens Act.

[16] Ch. 12, Section 9 a Aliens Act.

[17] Observation based on practice by the Swedish Refugee Law Center.

[18] Migration Court of Appeal, Decision MIG 2013:23, 9 December 2013, available at: http://bit.ly/3XDu0mS.

[19] CJEU, Karim v. Migrationsverket, Case C-155/15, Judgment of 7 June 2016, available at: http://bit.ly/2kKfKa9.

[20] Migration Court of Appeal, MIG 2020:4, 26 February 2020, see EDAL summary at: https://bit.ly/3bN6BZv.

[21] See e.g. UK Upper Tribunal, MS [a child by his litigation friend MAS] v. Secretary of State for the Home Department, 19 July 2018, available at: http://bit.ly/3wrBU7a.

[22] There is a right to free public counsel if a person is detained for more than 3 days as a measure related to expulsion or transfer. Also, certain vulnerable asylum seekers (deaf and mute for example) can be granted public counsel.

[23] SMA, Överföringar till Ungern i enlighet med Dublinförordningen, RS/010/2022, 11 November 2022, available in Swedish at: https://bit.ly/3R6H01V.

[24] European Commission, Commission Recommendation of 8.12.2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) NO. 604/2013, C(2016) 8525 final, 8 December 2016, available at: https://bit.ly/3J8EWEP.

[25] Information from the Migration Agency, Dublin Unit, July 2019.

[26] Information provided by the Migration Agency’s statistics unit.

[27] Chapter 10, Section 13 Aliens Act.