Author
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:
- there is an impediment to enforcement under [Article 3 ECHR or Article 33 of the 1951 Refugee Convention];[3]
- there is reason to assume that the intended country of return will not be willing to accept the alien; or
- there are medical or other special grounds why the order should not be enforced”.
The Migration Agency may grant a temporary residence permit or order the suspension of the removal order. Where the impediment is of a “lasting nature”, the applicant has resided in Sweden for three years and some other criteria are also fulfilled, however, a permanent residence permit may be granted, but this is a discretionary power.[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:
- 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
- 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. 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. There is no limitation in the number of subsequent applications that can be submitted, insofar as new grounds for protection are presented. 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.
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. An appeal must be lodged within the normal time limit of 3 weeks following receipt of the negative decision. A separate decision to suspend the removal order must be made by the Court to prevent the expulsion order from being carried out in the meantime. However, the first time a decision not to grant a re-examination is appealed, the appeal has automatic suspensive effect until the court decides whether to suspend the removal order, and, a suspensive effect is granted to appeals against decisions to reject a subsequent application on the merits.
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 2022, a total of 9,307 subsequent applications were submitted and the Migration Agency decided on 10,409 subsequent applications. Out of them, 735 subsequent applications resulted in a residence permit being granted, and 1,172 subsequent applications were admitted for re-examination. The main countries of origin of applicants lodging a subsequent application were Afghanistan (1,706 ); Iraq (920); Iran (527); Ukraine (387) and stateless (368 ).[8]
A ‘moratorium’ between 23 July and 29 November 2021 on the processing of asylum applications and return decisions concerning Afghans left many Afghans in legal limbo after the Taliban takeover in August 2021. The Swedish Migration Agency argued that the lack of country-of-origin information made it impossible to accurately determine the protection needs of individuals from Afghanistan and to take return decisions. After the Taliban takeover in August 2021, many Afghans submitted new asylum claims based on the changed security situation in Afghanistan. However, due to the moratorium, none of them were admitted back into the asylum procedure, which made them ineligible to receive support from the reception system, such as housing and welfare.[9] On 30 November 2021 the Migration Agency published a legal instruction on Afghanistan due to the Taliban takeover. The Agency considered[10] 575 subsequent applications from Afghan nationals.[11] Most decisions on subsequent applications submitted by Afghan nationals after the legal instruction dated 30 November 2021 were admitted for re-examination.[12] (for further information about Afghan applicants, see Differential Treatment of Specific Nationalities in the Procedures).
[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 – 18a 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 in Swedish at: https://bit.ly/3rWG1DG.
[7] Ch. 12, Section 19 Aliens Act.
[8] Information provided by the Migration Agency’s statistics unit.
[9] Fundamental Rights Agency, Migration: Key fundamental rights concerns – October 2021- December 2021, available at: https://bit.ly/40F4kaD, 17.
[10] Migration Agency, Rättsligt ställningstagande. Prövning av skyddsbehov för medborgare från Afghanistan – RS/089/2021, 30 November 2021, available in Swedish at: https://bit.ly/3XArWfn.
[11] Information provided by the Migration Agency’s statistics unit.
[12] SMA, Legal position RS/089/2021, Prövning av skyddsbehov m.m. för medborgare från Afghanistan, last updated 24 January 2023, available in Swedish at: http://bit.ly/3zaBcw6, 6.