Please note that this text is not updated according to the new, temporary asylum law which came into force the 20th of July 2016. The rules below apply to children and families with children who sought asylum at the latest on November 24, 2015. It is the age of the child at the time of the decision which will determine which law applies. You can read about the new, temporary law here.
Application at the latest by November 24th 2015
- Child (under 18 years) —> Regular asylum law (read below)
- Adult (without children in Sweden) —> New, temporary law
- Family* (with child under 18 years) —> Regular asylum law (read below)
*A family is defined by the parent(s)/legal guardian(s) with their minor children (under 18 years old).
Application later than November 24th 2015
- Child (under 18 years), Adult (without children in Sweden), and family* (with child under 18 years) —> New temporary law
IMPORTANT : If your case is handled according to the new laws and you do not receive a refugee status (3 years), it is possible to appeal against this decision. Note that you cannot appeal against the length of your residence permit but only against the status (e.g. against subsidiary protection, 13 months). Get in touch with a counselling as soon as possible so they can assist you with this!
The following rules apply to children and families with children who sought asylum at the latest on November 24, 2015. It is the age of the child at the time of the decision which will determine which law applies. You can read about the new, temporary law here.
The following has been copied from “Good Advise” published by FARR 2015. PAGES 7-9,15-17, 21-25 and were adjusted slightly in December 2016.
Refugees and others in need of protection
According to the Aliens Act there are three categories of individuals who enjoy the right to protection in Sweden; refugees, individuals in need of subsidiary protection and individuals otherwise in need of protection.
A refugee is defined by the Act as…
An alien who is outside the country of the alien’s nationality, because he or she feels a well‐founded fear of persecution on grounds of race, nationality, religious or political belief, or on grounds of gender, sexual orientation or other membership of a particular social group, and is unable, or because of his or her fear is unwilling, to avail himself or herself of the protection of that country.
Aliens Act chapter 4, section 1
The paragraph is based on the definition of a refugee that can be found in the UN convention on the legal status of refugees. The definition comprises several parts:
➽ that you are located outside your country of origin,
➽that you experience fear, meaning that you are afraid of persecution,
➽that the fear is well founded – meaning that the danger is real and can be corroborated by others,
➽that the persecution is a result of certain defined things, and
➽that you cannot get protection in your country of origin
You must meet all of these demands in order to be considered a refugee. In practice, the first item on the list means that you have to be in Sweden. The concept “well-founded fear” in this context means that you are afraid of what will happen in the future. Things that have already happened are not decisive.
According to the EU directive on who should be deemed to be a refugee, “persecution” must be actions that “constitute a severe violation of basic human rights”. Mentioned, by way of examples, are “acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment which is disproportionate or discriminatory”.
Even if you are not considered to be a refugee according to the refugee convention, you may be eligible for subsidiary protection under the Aliens Act. An individual is eligible for subsidiary protection if he or she does not risk persecution for a reason enumerated in the refugee paragraph but there is nonetheless a substantial reason to believe that he or she…
1. (…) Upon return to the country of origin, would run a risk of suffering the death penalty or being subjected to corporal punishment, torture or other inhuman or degrading treatment or punishment, or as a civilian would run a serious and personal risk of being harmed by reason of indiscriminate violence resulting from an external or internal armed conflict, and
2. (…) The alien is unable or, because of a risk referred to in point 1, unwilling to avail himself or herself of the protection of the country of origin.
Aliens Act chapter 4, section 2
(Please note that the extract from the Act has been somewhat shortened.)
This section is based on the definition contained in the EU directive on grounds for protection. The granting of a residence permit in accordance with one of the two definitions (refugee or individual eligible for subsidiary protection) is also referred to as asylum. Finally, an individual can, under the Aliens Act, be otherwise in need of protection. This applies if he or she does not fit the definition of a refugee nor is entitled to subsidiary protection but nevertheless…
1. Needs protection because of an external or internal armed conflict or, because of other severe conflicts in the country of origin, feels a well-founded fear of being subjected to serious abuses, or
2. Is unable to return to the country of origin because of an environmental disaster.
Aliens Act chapter 4, section 2a
When the paragraph on individuals otherwise in need of protection was drafted, the government mentioned a few examples of what the law considers to be serious abuses:
(…) reprisals, legal abuse and harassment. It can be a matter of both indiscriminate andsystematic breaches, which as a result of the power struggle in the country do not providethe individual with a possibility of obtaining protection or legal redress. (…) The breachescan take the form of disproportionate punishment, arbitrary deprivation of freedom,mistreatment,sexual violence, social exclusion, forbidding employment or otherharassmentwhenthey are of a severe nature but not sufficient grounds for grantingprotection based on the refugee clause (…)
Bill 2004/05:170, p 274
Regardless of the category of protection: threatened either by the state or by somebody else. However, if responsibility for the persecution or abuse lies with a non-[-]state actor you must show that the state is unable or unwilling to offer you protection.
If you are stateless, meaning that you are not a citizen anywhere, you may nevertheless be in need of protection against a country in which you have been a resident. You are not, however, entitled to a residence permit in Sweden for the sole reason that you are stateless.
What is the difference between the various categories of individuals in need of protection?
The refugee paragraph uses the expression “persecution”. Persecution does not necessarily imply threats against life or torture; it may consist in harassment or repeated threats, assaults and various forms of abuse. On the other hand, in order to be deemed a refugee you must be in danger of persecution for one of the specific reasons enumerated in the paragraph.
The paragraph on persons eligible for subsidiary protection applies to those who face particular kinds of risk, namely the death penalty, corporal punishment, torture or indiscriminate violence due to an armed conflict. Why someone is exposed to these risks does not matter – no conditions are listed. The paragraph is mainly used for people who have fled war (armed conflicts). If anyone in the area in question is at great risk, showing that you are from there may be enough. Otherwise you need to demonstrate that you as an individual are particularly exposed.
Finally, an individual otherwise in need of protection has usually fled from a situation that is not defined as armed conflict but nevertheless amounts to “serious opposition”. In that case, the chance that you will be affected is considered small. To qualify for this category, you must, in addition to the conflict, have a weighty personal reason as to why you in particular are in need of protection.
An application for asylum is processed in a certain order. First, the Migration Agency determines whether you meet the criteria to be deemed a refugee. If you do, you are entitled to asylum and refugee status. If you do not meet the refugee criteria, the investigation moves on to assess whether you are eligible for subsidiary protection, etcetera. The granting of a residence permit as an individual “otherwise in need of protection” is not referred to as asylum. However, individuals in all three categories of persons in need of protection are legally entitled to a residence permit. Exceptions are only possible if the applicant has committed war crimes, crimes against humanity or certain other serious offences.
Adults and children of all genders can be in need of protection. If a family applies for asylum, the grounds of each individual are to be assessed, even the children’s.
First instance: The Migration Agency
When you claim asylum in Sweden you will meet the Migration Agency. This is the authority that decides whether you will be granted residency in the country. You should claim asylum as soon as possible after arriving in Sweden, ideally the same day. If not, the Migration Agency might believe that you are not in urgent need of protection.
When you reach the borders of Sweden (including airports) you can say that you wish to claim asylum. You will then be taken to one of the Migration Agency’s application centres. These are located in for example Gothenburg, Malmö and Solna (in Stockholm). The application centres receive your asylum application and take your fingerprints and your picture. They will also assess whether you are entitled to the financial aid that asylum seekers can get if they do not have money of their own. Children under 14 do not need to provide fingerprints.
At this first assessment, the Migration Agency will only ask you a few questions about why you wish to claim asylum in Sweden. The information that the caseworker is looking for at this first meeting is your name, date of birth, citizenship and language. The Migration Agency will also ask you about your health status and ask whether you want to undergo a voluntary medical check-up. You can say yes to this.
You will be requested to submit your national passport if you have one. If not, the Migration Agency will ask for other identity documents, such as an ID card, a driver’s license, a military service record, military service card or birth certificate. They will also ask whether you have any specific requests regarding which public counsel you want (the public counsel is a lawyer who will assist you free of charge), and if it matters to you whether the person who interviews you or the interpreter is a man or a woman. It may be significant for you which public counsel you get and it may be advisable to choose yourself if you have the possibility. Please contact voluntary associations for information on knowledgeable lawyers.
You may also be asked to undergo a language analysis upon your first meeting. The Migration Agency performs language analyses in order to verify that you really come from the place that you claim to be from. The analysis consists of making a recording of your speech. A linguistic expert will then listen to the recording and assess where your dialect belongs.
After you have claimed asylum you will be given an ID card called an LMA card. LMA stands for the law governing the reception of asylum seekers. You will then be offered accommodation. If you do not have money of your own you will be given a daily allowance, financial aid for asylum seekers.
The details of the asylum assessment itself may vary.After some months (up to 1 year) after your registration you will be called to an interview with the Migration Agency. If a public counsel has been appointed, she or he will also be called to the interview. Read more under the sections “Legal counsel” and “Asylum assessment”.
Should your claim for asylum be assessed in Sweden?
Upon your first contact with the Migration Agency you will be asked several questions about how you arrived in Sweden. The caseworker will want to know when you left your country of origin, exactly from where you left and how you got here. He or she will ask whether you have passed through other countries before arriving here and whether you have tickets for your trip to Sweden. The Migration Agency will then assess whether your asylum claim should be decided here or in another country.
Read more under Dublin in the menu.
Accelerated process for “manifestly unfounded applications”
The Migration Agency may find that your claim is “manifestly unfounded” – meaning that you are obviously not in need of protection. This might be because you are a citizen of a EU country or any other country that is deemed safe (that is to say where human rights are generally considered to be respected) or because the Migration Agency considers it to be self-[-]evident that you lack grounds for asylum.
If your claim is found to be manifestly unfounded the Migration Agency may issue an order called “refusal of entry with immediate enforcement”. This means that you are to be expelled from Sweden and that you are not allowed staying in order to appeal the decision. Such a decision is made within three months after your asylum claim.
You may appeal a refusal of entry, but you are not entitled to wait here while the court considers your appeal unless the court grants you the right to stay. Voluntary organizations can sometimes provide support in this situation.
The Migration Agency may not decide on expulsion or refusal of entry without giving you the opportunity to comment on the decision in an oral hearing. This rule also applies to Dublin cases.
Most asylum seekers have the right to a legal counsel. This is a solicitor who helps you with your asylum claim and represents you in contacts with the Migration Agency. You do not need to pay anything for this; the Migration Agency or a migration court reimburses the solicitor.
You will not be provided with public counsel…
➽ if the Migration Agency considers it to be self-evident that you will be granted residency in Sweden.
➽if your asylum claim should not be assessed by Sweden.
➽if the Migration Agency considers your claim to be manifestly unfounded.
In other cases you are provided with a public counsel. If a decision is made that public counsel is not needed, you can appeal that decision. You may request to be represented by a particular solicitor when you meet the Migration Agency for the first time or shortly thereafter. It could be important that the person is interested in asylum issues and has prior experience of such cases. If you request a particular representative, the Migration Agency should grant your request unless there are particular reasons against it, such as the counsel living too far away from you. It might be good for female asylum seekers to be represented by someone who has worked with women’s asylum claims before.
May I change legal counsel?
It can be difficult to change your legal counsel. But if you have especially compelling reasons, for example that a serious conflict has erupted between the two of you, the Migration Agency may let you get a new counsel. If you live closer to the new representative you may state this as a reason.
If the Migration Agency will not let you change counsel, the decision can be appealed to the migration court. If the court rejects your application as well you can change your counsel anyway, but then you will have to pay for the service yourself. You also have the right to let someone other than your public counsel speak in your name and work on your case. Such a person is called a legal representative. All you need to do is give a power of attorney – that is a written permission – to that person.
Such a legal representative can contact authorities and lawyers in order to get information and act on behalf of your case. Any person can be a legal representative, including a relative, a friend or a member of some voluntary association. Your legal representative should co-operate closely with your solicitor and not act without informing the solicitor beforehand.
As mentioned above, asylum assessments may proceed in different ways. The Swedish Migration Agency is currently introducing a unified procedure. The description given here is based on this protocol that, in 2015, has been adopted in most parts of the country.
When your application for asylum is registered you will be summoned for an interview with a caseworker at the Migration Agency. You are entitled to choose your public counsel. If you do not, the Migration Agency will choose a counsel for you. Some counsels meet their clients before the interview, but most asylum seekers meet their public counsel for the first time in connection with the inquiry interview at the Migration Agency. It might be a good idea for you to contact your public counsel before the interview. Ideally, you would be able to calmly go through your grounds for asylum with your public counsel before you meet at the Migration Agency. If you have undergone a language test, your counsel ought to ask for the result, to be able to comment on it.
Your identity will be examined as extensively as possible. It is important to try to procure identity documents from your native country. These should be in the original, preferably with a photo. If you have fled your country using a fake name and fake documents you must be able to explain why. At the meeting at the Migration Agency an interpreter will attend and your legal counsel will assist you. As an asylum seeker you have a responsibility to point out all the relevant facts of your case. That’s why it is recommended to meet with the legal counsel to go through your grounds for asylum already before the interview. You have to tell the Migration Agency about everything that has happened to you and all your reasons for seeking protection.
If you seek asylum together with your family, the grounds for each of you should be described. You should also be interviewed one at a time. The individual protection needs of children must also be considered. What is in the best interest of the child should be weighed in at all stages of the asylum procedure. This is stated in the first chapter of the Aliens Act. Children seeking asylum are therefore not just a part of their parents’ claim.
All the papers and information that you want the Migration Agency to have should behanded in at the hearing. If you add things later on that you could have disclosed right at the start the Migration Agency might think that you are making things up. Therefore it is recommended to tell everything from the beginning.
After the interview a written record from the meeting will be sent to the counsel. You have the opportunity to comment on it and complement it with further information. You and your public counsel must read the record in detail so that you can find any errors and misunderstandings. This is very important. Ask to have everything read to you in your language! If something is wrong, it may be very difficult to get the Migration Agency to believe you if you give the correct version later.
You are entitled to copies of all documents concerning the asylum assessment. Even if you do not request your own copies, it is very important that you take part of all written material so that you can correct any mistakes with the help of people you trust.
When the public counsel has transmitted your comments and additions, the Migration Agency can make a decision on whether to grant you a residence permit. This can take a few weeks or even several months. Before the Migration Agency makes their decision they will check if you are in the police register of people suspected or guilty of committing a crime. If you are, this can affect your case. A person who has committed serious crimes can be denied residency.
Minor crimes can mean that you are granted a temporary residency permit, where you would normally have been given permanent leave to stay. Even minor crimes can tip the balance against residency if the grounds for granting a permit are considered to be relatively weak.
Right to an interpreter
You are entitled to the assistance of an interpreter during the asylum assessment. The interpreter may be present or participate via video-link or telephone. As a woman you may request a female interpreter if you feel that you prefer it. The interpreter must uphold professional confidentiality. In other words, he or she may not tell anyone what you have said. The interpreter should be neutral, that is to say not take sides. If you feel that you cannot trust the interpreter, for reasons due to ethnicity, religion, political affiliation or other reasons, you may request to have the interpreter replaced. This also applies if you have difficulties understanding the interpreter. It is important that you and the interpreter can talk to each other without problems.
If your claim is rejected
If your asylum claim is rejected by the Migration Agency you may appeal the decision to the migration court. You have the right to public counsel when appealing the decision.
If you are granted a permanent residence permit
You may stay in accommodation run by the Migration Agency for some time after being granted permanent residency, PUT. During this time the national employment service should find a municipality for you to move to. In some cases, for instance if you are too ill to work, the Migration Agency is responsible. If you have been living in your own accommodation you may stay there.
If you are granted PUT you can live in Sweden for as long as you like. The conditions are that you have been granted the permit on honest grounds and that you do not later commit serious crimes and are sentenced to expulsion. PUT is normally given for five years at a timebut is renewed if you continue to live in Sweden. If you leave Sweden for more than one year you risk not having your permit renewed. You may leave Sweden for a total of a year divided over several trips, but if you have been away for one year straight your residency in Swedencan be considered terminated. If you have been recognized as a refugee or a person otherwise in need of protection you have the right to live on trial in a country where you have lived earlier without the permit being withdrawn until two years after your residency in Sweden has ended.
Up until recently the permanent residency permit was glued into the passport. Nowadays the permit is given as a card. If you do not have a passport and you can prove that you cannot obtain a new one you may apply for a foreigner’s passport at the Migration Agency. You have to pay for this. If you have been given leave to stay as a convention refugee or as a person otherwise in need of protection you are entitled to a special passport called a traveldocument. This is free of charge. The foreigner’s passport or travel document is generally not valid for trips to your country of origin.
If you are granted a temporary residency permit
In certain cases the Migration Agency can grant temporary residence permits (TUT) instead of permanent ones. This may happen for example if:
➽ you have been granted residency in order to move in with someone living in Sweden
➽you are in need of healthcare and have been allowed to stay because you need treatment,such as surgery
➽you have been granted a residence permit in order to testify in a trial
➽there are temporary impediments to removal (See page 39.)
➽you have committed an offence and the Migration Agency is of the opinion that there is a risk of further criminality or anti-social behaviour
When you have been living in Sweden for five years you may apply for Swedish citizenship. If you have been granted convention status (that is, have been considered a refugee) or if you are stateless you will only have to wait four years. This time is counted from the day you made your asylum claim – if the Migration Agency or a court in the first process gave you residency. If you are granted residency after a new assessment, that is to say because of impediments to removal, the time is counted from the day of your decision. You might be able to count part of the time that you have spent legally in Sweden before that, but no more than half of it.
GUIDELINES FOR AFGHANS
The Swedish Migration Agency (Migrationsverket) published the 8th of December 2016 a new report about the security situation in Afghanistan. For some Afghans, this can mean that their case will be re-assessed after they have been rejected (3 negative decisions). If you want your case to be re-assessed, you should claim impediments to removal (verkställighetshinder). It is important that you give new reasons in your impediments to removal. Therefore, it is important to understand what is different in the new report compared to the old report. You can only use the reasons once for impediments to removal. Therefore it is important that this is done correctly and that you ask somebody for help with writing this. The Migration Agency does not pay for a lawyer for claiming impediments to removal but you may already have a good lawyer who wants to help you, or you can ask a group that gives asylum advice if they can help you.
Security situation in the different provinces
The security situation in the province of Helmand is considered to be so bad that nobody can be sent back there. This is something new in the new report. It is considered that there is an armed conflict in all of Afghanistan’s provinces except for Panjshir, Bamyan and Daikundi. It is new that Kabul, Takhar, Balkh and Samangan count as provinces where there is an armed conflict. If you come from the provinces Helmand , Kabul , Takhar , Balkh or Samangan , this can be a reason to re-asses your case.
Even if you come from a region where it is not safe for you, the Migration Agency can say that you can go to another place in Afghanistan (this is called internal flight). Only single, male adults and adult couples without disabilities or medical problems can be sent back to another place than where they come from. “Single women, children, or persons with special needs who lack support and protection from relatives and a functioning male network” cannot be sent to another place than where they come from.
It is important that you make clear that you are not only persecuted in your hometown but also in other parts of Afghanistan and that you would not be able to cope at another place.
Those groups have already been counted as vulnerable groups in the former report : converts and other religious minorities, women/girls without a male network and women in the public sphere, children who risk or are subjected to child labour, forced marriage, prostitution or other sexual exploitation, journalists, people who challenge the Taliban’s interpretation of Islam, LGBT-persons and certain professions which are considered to be in support of the government and international organisations.
It is new that the following groups are considered vulnerable : Hazaras, persons who are at a risk of being recruited by armed groups (both adults and children), persons who live in a way that does not match the norms of the Afghan society. If you belong to one of those groups, this can be a reason to re-assess your case.
What can you do?
If you still are in the asylum process: Speak to your lawyer or go to a place where you can get advice to talk about what this can mean for you. If you come from a dangerous province or belong to a vulnerable group, try to get proof of this which you can present in your asylum assessment.
If you already have got your final rejection (3 no): Speak to an advice group which can help you to claim impediments to removal. If you come from a dangerous province or belong to a vulnerable group, try to get proof for this which you can attach to your impediments of removal.
There is no guaranty that your case will be re-assessed, but it is important that you get good advice and that you try! There is always hope and you should not give up!