MIG 2021:20, case no. UM5998-21
| Publisher | Sweden: Migration Court of Appeal (Migrationsöverdomstolen) |
| Publication Date | 20 December 2022 |
| Other Languages / Attachments | Decision in Swedish |
| Cite as | MIG 2021:20, case no. UM5998-21, Sweden: Migration Court of Appeal (Migrationsöverdomstolen), 20 December 2022, available at: https://www.refworld.org/cases,SWE_MCA,61d972ab4.html [accessed 3 October 2022] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Sweden: Court of Appeal rules in favour of applicant whose detention did not fall under Article 8 of the Reception Conditions Directive
On the 20 December 2021, the Migration Court of Appeal gave its decision in the case of JB, an asylum applicant whose asylum claim had been rejected and who had subsequently been given a deportation decision. Almost a year after the Migration Authority submitted the enforcement of the deportation decision to the Police Authority, the applicant was taken into custody to implement the deportation and avoid the risk of absconding. The applicant was granted a new examination for a residence and work permit and on its rejection was kept in custody on the basis that it was considered probable that he would be deported.
The Migration Court of Appeal firstly noted that the main question in the case is whether under the Aliens Act there is a basis to take a person who has been granted a new case examination into custody and if there are conditions under EU law for the decision on detention. The Court found that a new examination of a residence permit constitutes a temporary impediment to enforcement and that it was a question of preparing or implementing the execution of a deportation decision.
Furthermore, the Court held that due to the previous rejection of the applicant's asylum claim, there was a risk of absconding and therefore reason to keep him in custody under the Aliens Act, however the Court then turned to EU law and determined that the applicant was covered by the provisions of the Reception Conditions Directive and therefore the conditions for detention in this directive must be met. Article 8 (3) (e) of the aforementioned directive sets out that an applicant can only be detained if it is necessary for the protection of national security or public order, which must be assessed on an individual basis. The applicant had previously been charged with theft and minor drug offences, which the Court determined could not be seen as a real and sufficiently serious threat nor could his personal behaviour constitute a real and current risk to public order. In light of this, the Migration Court of Appeal held that there were therefore no conditions for keeping the applicant in custody under Article 8 (3) of the Reception Conditions Directive, and or under the Aliens Act and that the Migration Agency's appeal must be rejected.
Based on an unofficial translation within the ELENA team, weekly legal update 7 January 2022
