Sweden: Migration Court of Appeal judgment on best interests of the child in expulsion decision

Tuesday, December 22, 2020

On 22 December 2020, the Swedish Migration Court of Appeal published its decision in A,B, and C v. the Swedish Migration Agency (MIG 2020:24).

The case concerns two Lebanese nationals, B and C, who arrived in Sweden in 2004 and applied for asylum. B and C also applied for asylum on behalf of A, their child, who was born in Sweden in March 2006. Their asylum applications were rejected and statute-barred after four years. The family re-applied for asylum and their applications were once again rejected and statute-barred. The family then applied for asylum a third time in August 2016.
In its most recent decision, the Swedish Migration Agency (SMA) found that the family members did not meet the criteria for neither international protection nor a residence permit. As such, the SMA decided once more to deport A, B and C to Lebanon. The Migration Court in Gothenburg upheld the decision. The family appealed the judgment and by which time, A had spent approximately 14 years in Sweden.

The Migration Court of Appeal confirmed that A, B and C did not meet the criteria for international protection.  In its assessment of whether a residence permit could be granted to the family, the best interests of the child were the primary consideration of the Court. The Court also examined whether there were such strong reasons in the case that would constitute ‘particularly distressing circumstances’ required by national legislation. As A had lived in Sweden for over 14 years, speaks fluent Swedish, attends school and is at an identity creating age with social relationships outside her family, the Court considered her to have a strong connection with Sweden. Additionally, the Court took into account A’s lack of network outside of her family in Lebanon and her negative perception of both the country and of her potential deportation there, given that her parents left because they believed they were at risk of persecution. In that regard, the Court concluded that it was in the best interests of A to remain in Sweden.
However, the Court noted that the best interest of the child cannot be the only and decisive factor for whether a residence permit should be granted. It highlighted that the CRC requires a balance of interests when assessing the proportionality of refusing the right to residence. Indeed, the best interest of A needed to be balanced against the State’s interest in controlling immigration. It found that much of A’s time in Sweden had been illegal as result of her families’ non-adherence to previous expulsion decisions. Nevertheless, the Court acknowledged that as a child, she did not have the opportunity to influence her parents' choice not to conform to an expulsion decision. Further it noted that both the CRC and the preparatory work for the national legislation regarding ‘particularly distressing circumstances’ emphasize that children should be seen as independent rights holders who may have their own reasons for a residence permit and hence, should not only be assessed as part of the parents' case.
In that regard, the Court considered that A’s best interests outweighed the opposing interests of the State. An expulsion of A to Lebanon could therefore not be considered proportionate and would be in violation of the CRC. The Court therefore granted residence permits to A, and her parents, B and C.

Based on case summary published on Refworld.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Family unity (right to)
Residence document