Grounds for detention

Sweden

Country Report: Grounds for detention Last updated: 10/06/22

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Swedish Refugee Law Center Visit Website

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:

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

Moreover, an alien may be detained:[1]

  • Where it is necessary for the carrying out of an investigation of his or her right to remain in Sweden;
  • Where it is probable that he or she 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 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.  Concerns have been raised been raised by several actors in 2020, including by the Parliamentary Ombudsman (JO), on several issues related to detention, including inter alia insufficient use of supervision as an alternative to detention, placement of detainees in prison or police facilities and a lack of sufficient proportionality assessments.[6]

On 30 June 2020, the Migration Court of Appeal ruled that Article 8(3)(d) of the Reception Conditions Directive does not allow the detention of asylum seekers under the Aliens Act when they are not detained as part of a return procedure covered by the Return Directive at the time of the asylum application.[7]  Furthermore, the provisions on detention in the Aliens Act do not provide the same possibilities for detention as the Reception Conditions Directive. The Directive’s grounds for detaining an asylum seeker for the purpose of determining or confirming the applicant’s identity or nationality or for the purpose of determining the factors on which the asylum application is based can therefore not be applied when there is no support for this in the Aliens Act.

On 2 July 2020, the Migration Court of Appeal found that the provisions on detention in the Reception Conditions Directive do not apply when an asylum seeker is sentenced to deportation for a crime and is taken into custody to prepare or enforce that deportation decision.[8]

On 25 January 2021, the Migration Court of Appeal found that Article 8(3)(d) of the Reception Conditions Directive does not allow the detention of asylum seekers under the Aliens Act when they are not detained as part of a return procedure covered by the Return Directive at the time of the detention decision.[9]

On 30 June 2021 the Migration Court of Appeal ruled that detention of a person with an expulsion order that gained legal force is not allowed during the time-period in which he or she has to voluntarily leave the country.[10]

On 20 December 2021 the Migration Court of Appeal found that it is allowed with detention of a person that got a subsequent application accepted. Since the Reception Conditions Directive was applicable, the detention had to be in accordance with the Directive.[11]

 

 

 

[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.

[6] Swedish Refugee Law Center, Hur ser regelverket ut när det gäller förvar i Sverige och finns det problem med hur det tillämpas?, Rapport om Förvar av juriststudenterna Cecilia Alpin och Arvid Skagerlind vid Uppsala Universitet inom ramen för en människorättsklinik, 22 April 2020, available in Swedish here: https://bit.ly/3vGq1bA

[7] Migration Court of Appeal, MIG 2020:14, 30 June 2020.

[8] Migration Court of Appeal, MIG 2020:15, 2 July 2020.

[9] Migration Court of Appeal, MIG 2021:3, 25 January 2021.

[10] Migration Court of Appeal, MIG 2021:13, 30 June 2021.

[11] Migration Court of Appeal, MIG 2021:20, 20 December 2021.

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