Grounds for detention

Sweden

Country Report: Grounds for detention Last updated: 21/04/21

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The detention of an alien who is seeking asylum can take place at any time during the asylum procedure and also after the claim has been rejected at the final instance. A person can only be deprived of his or her liberty for a reason set out in law.

Under Ch. 10, Section 1(1) of the Aliens Act, an alien, whether an asylum seeker or irregular migrant, over the age of 18, may be detained where:

  1. His or her identity is unclear upon entry; and
  2. He or she cannot make probable that the identity given to the authorities is correct.

Moreover, an alien may be detained:[1]

  1. Where it is necessary for the carrying out of an investigation of his or her right to remain in Sweden;
  2. Where it is probable that he or she will be refused entry or will be expelled; or
  3. 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 alien will abscond or will engage in criminal activities in Sweden or in any other way attempt to prevent deportation.[2]

Detention can be applicable in so called Dublin cases, pursuant to Article 28 of the Dublin III Regulation. The Migration Court of Appeal ruled in 2015 that 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] In a 2017 ruling, the Migration Court of Appeal held, after referring preliminary questions to the CJEU on the matter, that the applicable rules on detention under the Dublin Regulation cannot be read in such a way as to set hindrances to the carrying out of transfers to other EU countries, and that the Dublin Regulation provisions on the length of detention must be read in line with the preamble of the Regulation and national law.[4]

The Chancellor of Justice (JK), has criticised the Migration Agency in a decision regarding detention. In one case, the decision was made to enforce detention despite the fact that the deportation decision had not won legal force. The Agency was liable to pay compensation.[5]

The fact that the Migration Agency has been criticised for deficiencies related to a compulsory measure is serious and necessitates close monitoring.  

 


[1] Ch. 10, Section 1(2) Aliens Act.

[2] Ch. 10, Section 1(3) Aliens Act.

[3] Migration Court of Appeal, MIG 2015:5, 3 June 2015, available at: http://bit.ly/2mzQO8X.

[4] Migration Court of Appeal, MIG 2017:23, 5 December 2017, available at: http://bit.ly/2FV6lGQ.

[5] JK, ‘Kritik mot Migrationsverket p.g.a. felaktigt om beslut av förvar’, 4 December 2017, available in Swedish at: https://bit.ly/2IYR1Nw.

 

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