Author
The detention of a third country national who is seeking asylum can take place at any time during the asylum procedure and after the claim has been rejected at the final instance. A person can only be deprived of their liberty for a reason set out in law.
Under Ch. 10, Section 1(1) of the Aliens Act, a third country national, whether an asylum seeker or irregular migrant, over the age of 18, may be detained where:
- Their identity is unclear upon entry; and
- They cannot make probable that the identity given to the authorities is correct.
Moreover, a third country national may be detained:[1]
- Where it is necessary for the carrying out of an investigation of their right to remain in Sweden;
- Where it is probable that they will be refused entry or will be expelled; or
- For the purpose of preparing or carrying out deportation.
Detention under points (2) and (3) of para 2 can only be ordered if there are some reasons to presume that the third country national will abscond or will engage in criminal activities in Sweden or in any other way attempt to prevent deportation.[2]
Detention can also be applicable in so called Dublin cases, pursuant to Article 28 of the Dublin III Regulation. In Dublin cases, the Aliens Act provisions regarding detention are not applicable. The threshold for when detention can be used according to the Dublin Regulation must be met.[3]
To determine if a person is at considerable risk of absconding from a Dublin procedure, there has to be an individual assessment of all circumstances from case to case. When doing such an assessment the circumstances have to be concrete and implicate a considerable risk of absconding. Examples of such concrete circumstances include if the person has used different aliases, if the person has been expressing strongly negative feelings regarding the decision on transfer according to the Dublin Regulation, if the person has stated incorrect information or if the person has withheld essential information.[4]
The courts also regularly rule on questions of detention.
During 2023, there were five precedent rulings made by the Migration Court of Appeal regarding the national rules on detention. They concerned the allowed duration of detention, the grounds for detention, the grounds for denying visitors and on which grounds a public counsel is granted funds.[5]
In 2024, the Migration Court of Appeal found that the appointment as a public counsel for a detained person not only includes the question of detention but also the action of appealing a decision regarding a body search.[6]
In 2025, there were two precedent rulings on detention. The first concerned whether the recast Reception Conditions Directive is applicable when a person made a subsequent application that was rejected.[7] The second concerned whether the fact that a person had been detained according to the Dublin regulation had bearing on the applicability of Article 8.3 of the recast Reception Conditions Directive (i.e., grounds for detention of asylum seekers).[8]
In January 2024, a Commission of Inquiry presented a report with proposals aimed at strengthening the safety and security in the detention facilities run by the Swedish Migration Agency. The Commission was appointed as the Government saw a need to further align the rules regarding detention with the EU acquis, a review necessary also following critique from the Parliamentary Ombudsman (JO).[9] According to its instruction, the Commission should propose changes that would allow the time during which a person can be detained to be as long as is allowed according to the EU acquis. It also argued that it should also propose more alternatives to detention and changes that could improve the safety in detention facilities.
The Commission’s first report had proposals on, for example, the introduction of mandatory security screenings, room searches and supervising visits through the introduction of glass partitions in the visiting rooms. The Commission of Inquiry proposed that legislative changes enter into force on 1 July 2025.[10] The Government proposed a bill, based on the inquiry’s report.[11] The changes were proposed to enter into force on 1 August 2025, and did so as the bill was accepted by the parliament on 17 July 2025 and is now in force.[12]
On 17 February 2025, the Commission of Inquiry presented its second and final report.[13] The report includes a wide range of proposals. New provisions are proposed in the chapter on detention in the Aliens Act. They make a distinction between detention of asylum seekers and others, a change that aims to a greater extent align the legislation on detention with the EU directives. Longer periods during which persons can be held in detention and alternatives to detention, as order of supervision in combination with electronical surveillance, are also proposed. The responsibilities of the Swedish Migration Agency and the border police should also be clearer due to the proposed changes. Most of the proposed changes will enter into force the 21 July 2026, according to the draft bill presented by the Government.[14]
[1] Chapter 10, Section 1(2) Aliens Act.
[2] Chapter 10, Section 1(3) Aliens Act.
[3] Migration Court of Appeal, MIG 2015:5, 3 June 2015, available here.
[4] The Swedish Migration Agency, Legal Position, ‘Förvar i ärenden där Dublinförordningen ska tillämpas’, Lifos no 45250, avaliable in Swedish here.
[5] Migration Court of Appeal, MIG 2023:6, 17 May 2023, available in Swedish here.
Migration Court of Appeal, MIG 2023:9, 21 June 2023, available in Swedish here.
Migration Court of Appeal, MIG 2023:11, 25 August 2023, available in Swedish here.
Migration Court of Appeal, MIG 2023:13, 19 October 2023, available in Swedish here; Migration Court of Appeal, MIG 2023:15, 15 November 2023, available in Swedish here.
[6] Migration Court of Appeal, MIG 2014:15, 17 December 2024, available in Swedish here.
[7] Migration court of appeal, MIG 2025:2, 21 February 2025, available in Swedish here.
[8] Migration court of appeal, MIG 2025: 15, 15 December 2025, available in Swedish here.
[9] The Swedish Government, Moderna och ändamålsenliga regler för förvar, Dir. 2023:119, 10 August 2023, available in Swedish here.
[10] The Swedish Government, ‘Förbättrad ordning och säkerhet vid förvar’, SOU 2024:5, 10 January 2024, available in Swedish here.
[11] The Swedish Government, Prop. 2024/25:161, Förbättrad ordning och säkerhet vid förvar, available in Swedish here
[12] The Swedish Parliament, Betänkande 2024/25:SfU22, Förbättrad ordning och säkerhet vid förvar, available in Swedish here.
[13] SOU 2025:16, Ett nytt regelverk för uppsikt och förvar, 17 February 2025, available in Swedish here.
[14] The Swedish Government, Lagrådsremiss Skärpta regler om uppsikt och förvar, available in Swedishhere.