General (scope, time limits)
The average handling time for cases at first instance decreased from 507 days or 16.9 months in December 2018 to 288 days or 9,6 months in December 2019. Applications lodged by unaccompanied children have been processed significantly more rapidly than previously: the average processing time decreased from 513 days or 17,1 months as of December 2018 to 215 days or 7,2 months as of December 2019.
The Migration Agency decided upon 57,896 asylum applications in 2019. This included: 24,569 decisions on new applications; 19,951 prolongation decisions where renewal of a temporary protection permit was requested; 540 decisions requesting temporary permission to study at senior secondary level; and 12,836 decisions on subsequent applications.
Prioritised examination and fast-track processing (“Track 1”)
As outlined in the Overview of the Procedure, the Migration Agency has introduced a tracks policy in 2016 for different types of caseloads. Track 1 concerns cases where:
- There is a presumption that the claim will be successful;
- There is no need to appoint public counsel;
- The identity of the claimant has been ascertained based on the documents submitted;
- No other major processing steps are needed other than an oral interview.
In 2019, 2,296 applications were assigned to Track 1. A total of 2,892 decisions were delivered and 1,098 cases were pending by the end of the year.
Swedish legislation and regulations allow for a personal interview in all asylum cases. All interviews, whether in the regular or accelerated procedure, are carried out by the authority that is responsible for taking decisions on the asylum applications. These are carried out by officers of the Migration Agency and are divided into two phases. A reception officer interviews the applicant regarding personal details, health, family and general background and can also request that any supporting documents be provided. The asylum case officer carries out an interview to establish the basis of the claim in the presence of a legal representative, an interpreter and the asylum seeker. A decision on the merits is taken by two persons: the case officer and a decision maker. The difference between the two is that the case officer is responsible for the management of the case, which include administrative tasks, conducting the interview and writing a proposed decision. The decision maker is to have continual contact with the case officer, but will, in the end, have the final word regarding the assessment of the application and the decision.
Credibility assessments is of great importance in the asylum procedure. The Swedish Refugee Law Center has carried out a study in 2019 that examined which indicators are used by the Migration Agency in credibility assessments for decisions where the application has been rejected. The study covered 90 decisions from four different regions in Sweden and was based on a handbook published by the Department of Psychology at Gothenburg University. This handbook looks at how to assess credibility in asylum cases, i.e. by identifying suitable indicators to that end. 
The level of detail and consistency were found to be the two most common indicators and were categorised as suitable credibility indicators in the handbook. However, other less suitable indicators seemed to be also common, such as the reasonableness of the story. The study further identified three indicators that are not mentioned in the handbook but are quite frequently used by the Migration Agency. These three are speculations, hearsay and lack of subjective fear. These indicators have in common that they do not have any scientific support for them being suitable to use in credibility assessments.
The applicant may request an interpreter and interviewer of a certain gender. The Migration Agency shall accommodate these requests if possible. If the interpreter is lacking the necessary skills and this becomes apparent during the interview the case worker can close the interview and rearrange for another time with a competent interpreter. In practice, if there is a clear problem with interpretation during the interview, then the asylum seeker and/or legal representative can point to it and have the interview discontinued. In that case, a competent interpreter will be engaged on the next occasion.
It is not possible for the authorities to select interpreters sharing the same religious belief as an applicant because it is forbidden in Sweden to register a person’s faith. This means that the level of trust in the interpreter can vary and that sensitive issues may be avoided by the applicant. In the case of converts from Islam to Christianity, for instance, there is great sensitivity on this issue from the position of the applicant, who in rare cases has been interviewed by a case officer wearing a hijab. There is also a lack of knowledge of the relevant vocabulary amongst case officers and interpreters which has been noted by the authorities and is currently being addressed through an initiative of the Christian Council of Sweden in cooperation with professionals. Occasionally, interpreters request to be relieved of their task because the case concerns a convert from Islam. In the area of LGBTQI applications, the Migration Agency has arranged seminars for interpreters to standardise terminology but the need for terminological support has not yet been addressed regarding religion-based claims.
The government decided on 14 March 2019 to expand their annual directives to the Migration Agency by requesting them to assure legal quality and uniform application in asylum cases where religious conviction is a basis for the claim.
Only translators authorised by the Legal, Financial and Administrative Services Agency (Kammarkollegiet) have the right to designate themselves as authorised translators. Authorisation is awarded after a demanding written examination, consisting of texts on legal, economic and general topics. Authorised translators are required to observe high professional standards, which include maintaining confidentiality and only taking on assignments they are capable of completing in a satisfactory manner. Likewise, only interpreters authorised by the Legal, Financial and Administrative Services Agency may refer to themselves as authorised interpreters. To obtain authorisation, interpreters have to show in written and oral examinations that they have a good command of both Swedish and the other language concerned, as well as the necessary interpreting skills. They must also have a basic understanding of areas such as social services and social security, health care, employment and general law, and of the terminology used in these fields.
The Migration Agency is not obliged to use authorised legal interpreters. However, the Courts do rely on authorised legal interpreters to a larger extent, but they are not always available in certain languages. There is a general code of conduct for interpreters issued by Kammarkollegiet in Stockholm and last updated in December 2016. All companies stress that they follow the basic principles and respect the rules on confidentiality.
In 2018, the Migration Agency issued a guidance note to its staff regarding levels of competence necessary for different interpretation tasks. The government has also commissioned a wider report on interpretation services which has put forward a number of proposals. A number of strategic goals for the society’s provision of interpreters can be formulated as medium-term goals of around five years:
- The State funds fewer educational pathways for interpreters but increases the total capacity. Volume and orientation are coordinated in relation to state authorisation of interpreters, with a basic requirement for training and workplace learning.
- The State keeps a register of authorised and trained interpreters. This forms the basis of future public sector interpreting services.
- A new interpreting services act is introduced, and the use of children as interpreters is prohibited and replaced with the use of professional interpreters. Regulatory frameworks, quality assurance and supervision of interpreters and intermediary bodies are developed.
- The public sector plans for the long term, collaborates, coordinates and uses existing interpreting resources more flexibly and effectively. An increasing share of resources is used to finance core interpreting activities, i.e. interpreting services.
- Quality-assured interpreters are offered public assignments through the State’s coordinated commissioning. Authority requirements are matched against the quality of services delivered.
- The State and public sector build up their own interpreting resources where appropriate, or agree on guaranteed services. Cost increases for the public sector are held back but quality and societal benefits increase.
- The interpreting profession is valued and professionalised, which in the long term also leads to more traditional partnerships, a better work environment, higher employment rates and more labour market stability for interpreters.
However, in asylum interviews, when applicants recount the core events in their applications, interpreters occasionally fail to give a detailed account of what is said. At worst this can lead to an assessment by the case worker that the applicant has been vague in the account of events and therefore less credible. The onus is on the legal counsel to expand on clipped translations when making the submission after examining the transcript of the interview. The applicant may well have provided a detailed account in his or her own language but it is only what is interpreted that makes its way into the official transcript.
Recording and transcript
While video interviews are increasingly conducted, they remain a rare practice applied only if the applicant is residing at long distance from the Migration Agency’s designated interview office. The interview may be audiotaped by the asylum case officer but this is not mandatory. Since the asylum case officer only makes a recording for the purpose of double-checking the notes taken during the interview, the audio-recording is not considered formally part of the processing of the asylum application and therefore the permission of the asylum seeker is not required before a recording is made. For that reason, the tape is not made accessible to legal counsel or the applicant. Legal counsel and/or the applicant can record the interview themselves with their own recording devices but there are no statistics that show how often this occurs, and there has also been situations where interpreters have refused the legal counsel and/or applicant to record the interview.
Almost verbatim notes are taken of the interpreter’s translation and the transcript is made available to the applicant through the legal counsel to comment on and add to before a decision is made in the case. A specific date is given by the Migration Agency, usually one to two weeks for when these comments and additional information have to be submitted.
There are two levels of appeal in Sweden: the first level consists of four Migration Courts (migrationsdomstol) and the second is the Migration Court of Appeal (Migrationsöverdomstolen).
Appeal before the Migration Court
A refusal decision by the Migration Agency can be appealed before the Migration Court and has suspensive effect under the regular procedure. In manifestly unfounded cases, the appeal has no automatic suspensive effect but this is can be requested by the applicant and exists until the court decides thereon.
Appeals are made to the four Migration Courts in Stockholm, Luleå, Malmö and Gothenburg. All Dublin appeals are dealt with by the Migration Court in Stockholm. Appeals can be made both in relation to facts and/or points of law.
The asylum seeker has three weeks after having been informed of the first instance decision to lodge an appeal. The written decision is communicated orally to the asylum seeker by a staff member of the Migration Agency’s nearest reception centre with the assistance of an interpreter, often available by telephone, in a language understood by the applicant. It is the duty of the legal representative to contact their client to submit an appeal and examine the refusal decision. This duty is not laid down in law and there are no legal sanctions against the legal representative if the deadline is missed. The Swedish Bar Association can issue disciplinary sanctions against a legal representative if he or she is a member of the bar. An asylum seeker can also refrain from appealing the decision by signing an appropriate form and withdrawing the claim.
An appeal can be lodged by applicants in their own language, with some indication in Swedish or English – for practical reasons – as to the nature of the reasons for appeal. In a regular procedure an appeal is lodged in Swedish by the appointed lawyer but where no legal assistance is available the Migration Agency has a responsibility to ascertain the general content of a submission in a language other than Swedish and its relevance as a basis of an appeal. This does not mean that all the contents need to be translated in detail before a decision can be made. The appeal is formally addressed to the Migration Court but is sent first to the Migration Agency, which has the legal obligation to review its decision based on any new evidence presented. In 2019 the Migration Agency changed its initial decision in 4 cases (out of 14,760 decided cases). When the Migration Agency does not change its decision, the appeal is forwarded to the Migration Court which can independently decide if further translation is necessary. In 2019, 14,345 decisions were forwarded within 10 days to the Courts.
Oral hearings at the Migration Court are not mandatory but can be requested by the asylum seeker. A decision has to be made by the judge on the matter of an oral hearing before the case is examined by the court. Where the court refuses an oral hearing, the applicant is given a set date by which the appeal must be completed. The four courts vary in the extent to which oral hearings are granted:
Oral hearings held by the Migration Courts: 2019
In 2019, 5,194 hearings were held in a total of 21,978 cases. An oral hearing may be open to the public initially but, before the proceedings start, the judge enquires about the applicant’s wishes regarding confidentiality and decides accordingly. The judge may, however, outweigh the wishes of the applicant and declare that the hearing be video recorded e.g. in cases of national security.
Decisions are published but formulated in a way as to minimise any harm to the applicant. Names can be omitted on request and certain parts of the testimony can be declared confidential and therefore not be included in the final decision. The Courts' decisions are not available online. However, upon request, the general public has access to all decisions in paper or electronic version.
Asylum seekers in the regular procedure have access to free legal aid and are usually called to a meeting with the lawyer to prepare the appeal to the Migration Court. The reasons for the first instance rejection are explained and the applicant has an opportunity to provide new evidence or arguments to support his or her case. An interpreter is available at this meeting. On rare occasions, legal counsel may fail to submit the appeal in time and this means the case is abandoned. However, there is a mechanism whereby an appeal can be made to have the late submission accepted by the court. The outcome of such an appeal depends on whether there are any extenuating circumstances e.g. in the event of serious illness or death of the applicant’s legal counsel. If all the elements of the appeal cannot be submitted within the 3-week period when an appeal has to be lodged, the legal counsel can ask for an extension to complete the appeal. This is often granted. If the applicant wants an oral hearing at court, this has to be specifically requested. When this is done and the request is refused, and a date is set for the completion of the submission and any arguments that would have been presented in a court appearance can be submitted in writing.
Onward appeal before the Migration Court of Appeal
“Leave to appeal to the Migration Court of Appeal is issued if:
- it is of importance for the guidance of the application of the law that the appeal is examined by the Migration Court of Appeal or
- there are other exceptional grounds for examining the appeal.”
In the general administrative procedure law, there is a further ground for leave to appeal “if reason exists for an amendment of the conclusion made by the county administrative court”. However, this ground does not apply to the Aliens Act. Leave is only granted where an appeal may be of importance as a precedent, or if there are exceptional reasons, such as a serious procedural error made by the Migration Agency or the Migration Court.
The applicant and the Migration Agency have 3 weeks to appeal to the Migration Court of Appeal after the delivery of the Migration Court’s decision to the applicant. Decisions of the Migration Court of Appeal are final and non-appealable.
The Migration Court of Appeal is the main source of jurisprudence in the Swedish asylum system. Decisions by the Migration Courts are not deemed to set precedent, even though they may contain important legal reasoning.
The Migration Court of Appeal can exceptionally hold an oral hearing but in most cases there is only a written procedure. Decisions on leave to appeal are taken by one or, in in exceptional cases, three judges. There are no lay judges at the Migration Appeal Court; it only comprises qualified judges. If leave to appeal is granted, a decision is taken by three judges, while exceptionally important cases are decided by a panel of seven judges.
Free legal aid is provided for public counsel to make an application for leave to appeal. If leave is granted, then further legal aid is provided. Until a decision on leave to appeal is handed down, the appeal has suspensive effect. If leave is refused, the expulsion order is legally enforceable.
By the end of December 2019, 12,403 appeals were made to the Migration Court of Appeal, out of which 12, 291 were decided upon. Only 54 cases were given leave to appeal, 4 were approved, 27 rejected and 23 referred back to the lower instances.
When the Migration Court of Appeal hands down its decision, the expulsion order is enforceable and the person is expected to leave Sweden voluntarily within two weeks in a manifestly unfounded case or four weeks in regular procedure cases.
In national security cases, where the asylum seeker is considered as a potential threat to national security, the Migration Agency is the first instance and the Migration Court of Appeal provides views on the appeal, but the Government is legally responsible for the final decision. However if the Migration Court of Appeal determines that there is a risk of torture or other breaches of Article 3 ECHR, which has been incorporated into Swedish law, then the Government has to abide by this opinion.
Free legal assistance is provided to asylum seekers throughout the regular procedure and at all appeal levels and is funded by state budget. In cases concerning appeal of the Migration Agency’s decision regarding declaration of status and a decision not to grant a re-examination of a subsequent application, a public legal counsel shall be appointed if the person requests it, if he or she is in Sweden and it is not obvious that the appeal does not have a reasonable prospect of success.
The legal representative is assigned and designated by the Migration Agency or the respective court, where applicable the asylum seeker can ask for a specific person to be designated, a request which is normally granted. The criteria for the appointment of legal counsel take into consideration whether the counsel is located close to the office responsible for handling the case but this is not an absolute criterion if the applicant has requested a specific lawyer. According to a ruling of the Migration Court of Appeal, the choice of lawyer by the applicant must be respected even if the lawyer is located at a distance or is not available at the preferred time of the Migration Agency for an interview.
At the preparatory meeting, the lawyer should inquire briefly as to the substance of the claim and ask for any substantiating documents as well as provide the asylum seeker with advice on the asylum procedure. The legal counsel then attends the oral interview and subsequently makes a submission which incorporates any views on the oral transcript and any supplementary information counsel wishes to refer to in relation to the substance of the case.
It is difficult for the lawyers to know in advance the exact number of hours of work out of those they have requested payment for they will be paid for by the authorities. Their fee can be reduced by a decision of the Migration Agency or at a later stage by the Court. These decisions can be appealed separately by legal counsel. On average, 10-15 hours of work are usually approved at the first instance for regular asylum cases and any hours beyond those must be carefully motivated based on the exceptional nature of the case. Interpretation costs are reimbursed separately, along with other necessary expenses. Lawyers do not get paid for investigating country of origin information.
Other areas of legal practice are often better remunerated than asylum cases. Currently, the fees for asylum cases are approximately €139 an hour (1,480 SEK, not including VAT). At the Court level, the legal costs are higher if there is an oral hearing compared to a mere written procedure but the hourly fee remains the same.
There are no special requirements for lawyers with regard to their knowledge of asylum and migration law. The Parliamentary Ombudsman (JO) has stated in a decision that the Migration Agency is responsible for ensuring that the legal counsel is sufficiently competent for the task in hand, in practice, it can be argued that it is sufficient that they have a law degree in order for them to be appointed by the Migration Agency or the courts. The JO has also declared that the Migration Agency should have a system where it monitors and documents the skills and/or deficiencies of legal counsel. The previous system – the keeping of a “black list” – was deemed not to meet legal standards. Due to JO criticism, the Migration Agency issued an internal instruction in 2017 on qualifications needed in order for the Agency to appoint a person as legal counsel.
During 2018 investigative journalists at Swedish Radio exposed the appointment of unqualified legal counsel:
“In two notable reports, the Swedish Radio’s Kaliber programme has examined public counsel in the asylum process. In the latest review, it emerged that the Migration Board's control of the counsel’s suitability showed troublesome deficiencies, which has meant that persons who lack the requisite legal competence – and who in some cases have engaged in serious crime – have been able to receive state compensation in order to monitor the rights of asylum seekers during the asylum process.
A closer inspection of these counsels’ submissions revealed an astoundingly low quality. Despite the fact that the Migration Board has noted this, for example, by greatly reducing the compensation to the relevant counsel, these have subsequently received new appointments from the same authority (which they then mismanaged in the same way as previous assignments).
It is very problematic that inappropriate persons are appointed as public counsel. The right to counsel is a fundamental guarantee of legal certainty, which is particularly important in the asylum process, where a wrong decision can have disastrous consequences for the asylum seeker.
Typically, the applicants – for understandable reasons – also have difficulty monitoring their own interests during the process, for example as a result of traumatic experiences in the home country, lack of knowledge in the Swedish language and of Swedish legislation.
For these reasons, the state, as a rule, pays for public assistance in the asylum process. However, unlike what applies when appointing public defense officers, there is no formal requirement that the person being appointed as public counsel must be a lawyer or even have a law degree. Instead, it is a general rule that the person in question must be "suitable for the assignment".
This led to a proposal from a number of academics and lawyers that the right to public counsel should be decided on by a court and not the Migration Agency. This proposal has not led to any changes so far.
The Agency maintains a list of persons who have registered to be legal counsel in asylum and migration cases and distributes cases according to their availability. There are no requirements on legal counsel to pass any tests in this area of law and this means there can be an uneven level of competence which in individual cases can be to the detriment of the asylum seeker's protection grounds. The asylum seeker has the right to complain if the appointed legal counsel does not fulfil his or her duties and to request a new lawyer. However, this is rarely granted. Lawyers must have seriously breached their professional duties to be removed from a case e.g. drunken behaviour or other gross misconduct not directly related to the handling of the substance of the case. Migration law is not very prestigious in the legal profession but initiatives have been taken at the Universities of Uppsala and Lund to give training to students at doctoral level in this field who will monitor and analyse current Swedish practice and developments in international law.
In 2019, legal counsel was granted in 17,099 regular cases and in 277 Dublin cases.
Asylum seekers can also approach NGOs for advice. It should be noted that some NGOs have cut back their services to asylum seekers while others such as the Swedish Refugee Law Center are expanding their services through increased funding from their constituent organisations the Church of Sweden, Caritas Sweden, Save the Children, Sweden and the Diocese of Stockholm. The Swedish Red Cross offers legal support through a hotline as well as by appointment, and its lawyers can act as legal counsel. The Red Cross prioritises cases concerning family reunification, persecution due to risk of torture and gender-based persecution.
 Chapter 13 Section 1 Aliens Act
 Gothenburg University, Värdering av muntliga utsagor, ett vetenskapligt baserat beslutsstöd för migrationsärenden, 2017, available in Swedish at: https://bit.ly/2Ocf6lS.
 Swedish Refugee Law Center, Tillförlitliga kriterier? En granskning av Migrationsverkets tillförlitlighetsbedömningar av asylberättelser, 2019, available in Swedish at: https://bit.ly/3dtvDMn.
Ch. 8, Section 9 c Aliens Ordinance Act.
 Ibid. Note that Article 15.3(c) recast Asylum Procedures Directive introduces that obligation “wherever possible”.
 Migrationsverkets kommentar till rapporten om konvertitärenden, https://bit.ly/2ufK3Pt.
 The Migration Agency has introduced quality assurance procedures that retroactively require an analysis of how a case has been handled from various perspectives. This includes methods of promoting a learning organisation and check-lists have been introduced covering many issues. The team the case officer belongs to examines quality assessment reports on a regular basis and the team-leader has the responsibility for establishing and developing good practice: Information provided by the Migration Agency, 2015.
 Ch. 12, Section 10 Aliens Act.
 Ch. 12, Section 8a Aliens Act.
Ch. 23 Section 2 Administrative Law (Förvaltningslagen).
 Ch. 16, Section 12 Aliens Act.
 Section 34a(2) Administrative Court Procedure Act (1971:291).
 Ch. 16, Section 10 Aliens Act.
 Ch. 16, Section 10 Aliens Act.
 Ch. 2a, Special Control of Aliens Act (Lagen om särskild utlänningskontroll) 1991:572.
 Ch. 10, Special Control of Aliens Act.
 Chapter 18, Section 1 Aliens Act,
 Chapter 18, Section 1a Aliens Act,
 Standard hourly fee for 2020 according to the Legal Aid Act, https://bit.ly/2uJLHsA.
 JO, ‘Statement regarding the Migration Board’s list of legal counsels who are subject to monitoring, supervision and control’, 4500-2014, cited in the Annual Report 2014/2015, available at: http://bit.ly/2I9LJMm.
 Information provided by the Migration Agency’s statistics unit.