Subsequent applications

Sweden

Country Report: Subsequent applications Last updated: 30/11/20

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When an asylum application has been rejected and the decision is final and non-appealable, there is a possibility for newly arising circumstances to be considered under the grounds of “impediments to enforcement”. Such new circumstances may give rise to a residence permit on humanitarian grounds or practical obstacles to removal,[1] or, if such a permit cannot be granted, lead to a re-examination of the initial case.[2]

Under Chapter 12 Section 18 of the Aliens Act, the Migration Agency may grant a residence permit where “new circumstances come to light that mean that:

  1. there is an impediment to enforcement under [Article 3 ECHR or Article 33 of the 1951 Refugee Convention];[3]
  2. there is reason to assume that the intended country of return will not be willing to accept the alien; or
  3. there are medical or other special grounds why the order should not be enforced”.

If the impediment is only temporary, the Agency may grant a temporary residence permit or order the suspension of the removal order. Where the impediment is of a “lasting nature”, however, a permanent residence permit may be granted.[4] Decisions made pursuant to this provision cannot be appealed before the Migration Court and are final.

Conversely, Chapter 12 Section 19 of the Aliens Act deals with subsequent applications invoking new circumstances where:

  1. these new circumstances “can be assumed to constitute a lasting impediment to enforcement referred to in [Article 3 ECHR or Article 33 of the 1951 Refugee Convention];[5] and
  2. these circumstances could not previously have been invoked by the alien or the alien shows a valid excuse for not previously having invoked these circumstances”.

This requirement of providing a valid reason for not presenting new circumstances at an earlier stage can in practice undermine the absolute protection of Article 3 ECHR. In Swedish practice cases involving a real risk of treatment mentioned in Article 3 ECHR can risk being ignored if the applicant is deemed not to have had valid reasons for not presenting the facts earlier. It is worth noting, nevertheless, that this provision of the Aliens Act is in line with the rules laid down by Article 40(4) of the recast Asylum Procedures Directive on subsequent applications.

Much-needed guidance on the interpretation of the requirement of a valid reason was handed down by the Migration Court of Appeal on 10 April 2019.[6] The Court concluded that if it is considered that there are reasonable grounds to assume that a foreigner in the country to which expulsion has been ordered would be in danger of being punished with death or being subjected to corporal punishment, torture or other inhuman or degrading treatment or punishment, it is not required that the applicant shows a valid reason in order for a subsequent application to be admitted.

Where these two cumulative criteria are met, and if a residence permit on humanitarian grounds cannot be granted, the Migration Agency must re-examine the case. Sur place reasons such as conversion to a new religion after a final decision can be grounds for reopening the case if there is a risk of persecution in the home country. However, the Migration Agency has no discretion to re-examine the application where these conditions are not met.[7]

Section 19 therefore concerns new grounds for international protection and not humanitarian grounds or practical problems in enforcing expulsion. Accordingly, a negative decision on a subsequent application may be appealed. Submissions are made in writing and an oral hearing rarely takes place. There is no limitation in the number of subsequent applications that can be submitted, insofar as new grounds for protection are presented.

The refusal of entry or expulsion order may not be enforced before the Migration Agency has decided on the question of whether there will be a re-examination or, if such re-examination is granted, before the question of a residence permit has been settled by a decision that has become final and non-appealable.

Decisions made either not to grant re-examination, or to refuse a subsequent application on the merits, can be appealed to the Migration Court and further to the Migration Court of Appeal. A separate decision to stay the removal order must be made by the Court to prevent the expulsion order from being carried out in the meantime. An appeal must be lodged within the normal time limit of 3 weeks following receipt of the negative decision.

There is no free legal assistance in submitting a subsequent application. However, if the application is admitted for re-examination by the Migration Agency – or through a stay in the expulsion order at court level if the Migration Agency’s decision is appealed – legal counsel can be appointed (see: Regular procedure: Legal assistance). Asylum seekers can also approach NGOs for advice. However, the procedure is written and complex with statistically little chance of changing the negative decision, and applicants also have no access to free interpretation. The Swedish Refugee Law Center provides legal assistance free of charge to persons seeking to submit a subsequent application for international protection. An application is submitted on behalf of the applicant in cases where it is assessed that there are reasonable prospects for a successful outcome. For more information please visit www.sweref.org.

In 2019, 12,298 subsequent applications were submitted. Out of 12,836 decisions on subsequent applications, 482 were accepted on international protection grounds and 478 on humanitarian grounds or the right to study at senior secondary level. The main countries of origin of subsequent applicants were Afghanistan (3,299); Iraq (2,098); Stateless (585); Somalia (339); Iran (456); Palestine (300); Albania (222); Lebanon (240); Ukraine (166) and Russia (182).

 


[1] Ch. 12, Section 18 Aliens Act.

[2] Ch. 12, Section 19 Aliens Act.

[3] Ch. 12, Sections 1-2 Aliens Act.

[4] Ch. 12, Section 18 Aliens Act.

[5] Ch. 12, Sections 1-2 Aliens Act.

[6]  Migration Court of Appeal, UM 12194-18, MIG 2019:5, 10 April 2019, available at: https://bit.ly/2XBNzg0.

[7]  Ch. 12, Section 19 Aliens Act.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX – I Transposition of the CEAS in national legislation