Author
With the exception of 48-hour detention of persons pending investigation on their right to remain in Sweden (see Grounds for Detention), a detention order must be reviewed within 2 weeks, while detention orders against persons issued with a removal decision are reviewed within 2 months.[1] Review of alternatives to detention (“supervision”) is carried out within 6 months.[2]
Where time limits are not respected, a decision to detain or hold a person under supervision ceases to be legally binding.[3]
Each review of a detention order must be preceded by an oral hearing.[4] This also applies to supervision unless it appears obvious from the nature of the investigation or other circumstances that no hearing is needed.
A decision regarding detention can be appealed.[5] Depending on the authority responsible for the initial decision to detain, an appeal can be made either to the Swedish Migration Agency, the Migration Courts or to the Migration Court of Appeal. In the case of the latter, no leave to appeal is required (as is the case for an asylum application). In certain cases, it is the responsible minister that can make a decision on detention. This detention decision can be reconsidered in accordance with the time limits and changed by the Government. A government confirmation of a detention order can only be changed by another authority if new circumstances arise that are raised before the Swedish Migration Agency in the form of a subsequent application. However, a government order must also be reviewed according to the legal time limits.
In its report The Commission of Inquirymakes several proposals that clarifies the responsibility for deciding to detain a third country national and to release a person from detention. Current legislation and the case law related to it is, in this regard, complex, including the question on which authority/court is responsible for the detention order.[6] Under the proposed changes, the police and the security police can detain persons in some circumstances. In all other cases, the Migration Agency is responsible for detention. Therefore, the courts will never be responsible for the detention in this sense.[7]
[1] Chapter 10, Section 9(1) Aliens Act.
[2] Chapter 10, Section 9(2) Aliens Act.
[3] Chapter 10, Section 10 Aliens Act.
[4] Chapter 10, Section 11(1) Aliens Act.
[5] Chapter 14, Section 9 Aliens Act
[6] SOU 2025:16, Ett nytt regelverk för uppsikt och förvar, 17 February 2025, chapter 9.3, available in Swedish here.
[7] SOU 2025:16, Ett nytt regelverk för uppsikt och förvar, 17 February 2025, chapter 9.4, available in Swedish here.