Sweden and the Dublin ll Regulation By Karin Benson, Judge, Head of Unit, the Administrative Court in Stockholm Background

The Swedish Migration Board is responsible for examinating applications for asylum submitted by third country nationals.

Negative decisions made by the Migration Board under the Dublin II Regulation can be appealed to the Migration Courts and, for final and precedent‐setting decisions, to the Migration Court of Appeal.

Leave to appeal is required to allow a decision of the Migration Court to be considered in full by the Migration Court of Appeal. The Migration Court of Appeal can grant leave to appeal in the event of “precedence exemption” or “extraordinary exemption”, i.e. not on the grounds that reason exist for an amendment of the conclusion made by the lower instance.

The Administrative Courts in Stockholm, Gothenburg and Malmoe are the Migration Courts and the Administrative Court of Appeal in Stockholm is the Migration Court of Appeal.

The number of appeals to the Migration Court in Stockholm under the Dublin II Regulation are as follows:

Jan – Aug Sep – Dec All year 2009 177 150 327 2010 265

As the figure above shows, there has been a steady increase of appeals since the second half of 2009, and it is still increasing.

Judgments

Investigation When a decision is appealed, there is a court action of two parties: the Migration Board and the appellant.

In two precedent-setting cases the Migration Court of Appeal has found that the applicant can only be appointed a public counsel in a case under the Dublin II Regulation if he or she is detained and if it can’t be assumed that there is no need for a counsel in the court action. (Case No. UM 13‐08, February 26th 2008, and Case No. UM 9345‐09, March 19th 2010)

This raises the question how the investigation in cases under the Dublin II Regulation is to be handled by the court, and is especially the case when the court has indications that Article 3.2 of the Dublin II Regulation (Article 3 ECHR) is applicable because of humanitarian reasons.

An important rule is the “principle of official processing”. According to Swedish legal practice it is primary the claimant who has to submit all possible elements needed to substantiate the claim, e.g. present medical reports. The court has a more far‐reaching investigation responsibility regarding available information about the asylum system in other Member States. There is a key distinction between refoulement cases and medical cases as Article 3 ECHR and the Swedish Aliens Act provides absolute protection in refoulement cases.

Article 3 ECHR and the principle of non refoulement

In a precedent-setting case in October 2008 the Migration Court of Appeal rejected an appeal against the transfer of an adult to Greece, finding that serious humanitarian grounds are required to override responsibilities otherwise applicable under the Dublin II Regulation (see Migration Court of Appeal Case No. UM 34‐07, June 15th 2007). The Migration Court of Appeal found (Case No. UM 2397‐08, October 28th 2008) that it was not a violation of Article 3 of the ECHR and the principle of non‐refoulement to transfer the applicant to Greece. In the case the Migration Court of Appeal: • presumed that all EU Member States are able and willing to fulfill their agreed EU obligations, • found that it was primarily for EU institutions, notably the European Commission and the Court of Justice of the EU, to ensure that rules are followed, and • reported that the Swedish Migration Board on a three‐day visit to Greece in April 2008 had found that 26 randomly selected asylum‐seekers it had transferred to Greece had all been granted access to the Greek asylum procedure.

Article 8 ECHR

The Migration Court of Appeal has in June 2010, stating that in the enforcement of the Dublin II Regulation it is necessary to weigh the public interest against the applicant’s rights under Article 8 of the ECHR, found that Article 3.2 of the Dublin II Regulation had to be applied in the case so as not to violate Article 8 of the ECHR. The case involved a man who, according to a decision from the Migration Board, was to be transferred to Germany under the Dublin II Regulation. His wife’s and child’s applications for asylum was to be examined in Sweden. The situation had occurred due to their own actions (Case No. UM 8098‐09, June 9th 2010). Transfers to other Member States The Swedish Migration Board does not transfer unaccompanied children and separated children to Greece by reference to inhumane conditions in reception facilities and the risk of detention.

There is an ongoing discussion in the Migration Courts on transfers under the Dublin II Regulation to a number of Member States for vulnerable applicants (young single women, the elderly, families with minor children or persons with serious health concerns) by reference to the more general humanitarian situation in reception facilities, and in relation to the responsibility of Sweden to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the ECHR.

Regarding transfers to Greece the question has been reaffirmed if the prevailing asylum legislation and practice in Greece does offer sufficient safeguards to ensure that persons in need of protection have access to a fair and efficient asylum procedure, and if the situation in Greece require the suspension of all transfers to Greece or if an assessment on a case by case basis must be done.

The legal practice is that given the fact that the Member State is party of the 1951 Convention and the ECHR, a transfer doesn’t in itself constitute a violation of the right of asylum. The applicant must not only raise general difficulties but also personal ones that the receiving Member State authorities will not offer him or her a fair and efficient asylum procedure.