The government presented its action plan to reduce refugee immigration at a press conference November 24, 2015. Later, February 11, 2016, the Government published a detailed Bill (new law proposal) which has been slightly adjusted after criticism of the white paper from the consultative bodies. These adjustments are included below.
The proposals have now been approved by the Swedish parliament. What we describe here is the final result. Critique of the measures are based on reasoning from experts and NGOs.
Note: Applications for a residence permit in Sweden from children and their families who applied no later than November 24, 2015, are not assessed according to the temporary law. Instead, the Aliens Act is the legal basis. This applies if the subjects are present in Sweden and the child has not turned 18 when the decision is taken.
For adults without children – regardless of when they sought asylum – and for all who have sought asylum in Sweden after November 24, 2015, the following rules will apply:
- Those granted asylum in Sweden will no longer receive permanent residence permits, which most people are granted today. Residence permits for persons with refugee status will be valid for three years. Residence permits for subsidiary protection will be granted initially for thirteen months. Residence permits granted due to enforcement hindrances under the Aliens Act Section 12.18 shall be for thirteen months.
Comment: Those who are allowed to stay because they are considered persecuted on individual or political grounds are often granted refugee status. For example, most Eritreans are recognised today as refugees, as well as a large number of the Afghans who are allowed to stay. War refugees who are not considered personally persecuted, but are still allowed to stay because it is so dangerous in their homeland that no one can be sent there, are instead granted the status of subsidiary protection. Most Syrians are granted subsidiary protection, but a smaller proportion of Syrians have refugee status. In 2015, 53 percent of all persons who received residence were granted subsidiary protection, while 39 percent were granted refugee status. The remainder who were allowed to stay received permits on other grounds, usually because of “distressing circumstances”. Hindrances to enforcement means that an already approved expulsion is quashed because there are new circumstances that make expulsion impossible to be enforced.
- When the residence permit has expired the person will be able to seek an extension. If the person is still in need of protection a new temporary permit will be granted. The extension should normally be two years for subsidiary protection and thirteen months for those with refugee status.
- To obtain permanent residence when the temporary permit has expired, the applicant must have acquired an income to be self-supporting. It should be a “taxed” income, a white job or an own business. A person who is under 25 must in addition have completed senior secondary schooling (“gymnasium”) or the equivalent. During the time the temporary law applies there is no possibility of permanent residence for the elderly, sick or children who cannot obtain an income.
Those who have come to Sweden as “quota refugees” (resettlement cases), on selection by for example UNHCR, continue to be granted permanent residence. But this is a small group (Currently 1900 per year)
Critique: This undermines the right of asylum and hinders the integration of people who need protection by forcing them to continue living in insecurity. For children and war trauma victims a temporary residence permit is devastating – security is a pre-condition for rehabilitation.
After criticism from the consultative bodies a new section has been included which states that extremely ill children can be granted a permanent residence if the child cannot be rehabilitated in any other way.
- The category “others in need of protection” will not get a residence permit. They were last years only about 20 people a month who were allowed to stay on this basis, but they are asylum seekers who may be in danger based on personal reasons related to the conflict in the country, but do not fit into the categories for obtaining asylum.
- “exceptionally distressing circumstances” for adults and “particularly distressing circumstances” for children, will only lead to the granting of a residence permit if the deportation would be in “contravention of Sweden’s convention obligations”. Permits according to this section will be temporary under the same terms as those granted for subsidiary protection.
Comment: It is difficult to predict what the removal of “distressing circumstances” as grounds for a permit will lead to, since the bar for what is deemed distressing is already so high. We do not know which of these people in very difficult situations will now be deported. The examples mentioned in the Bill regarding” convention obligations” are the right to family life according to the European Convention of Human Rights and the risk that a sick person would be treated so badly that it would amount to “inhuman or degrading treatment”. But the objective of the government is at the same time that the implementation of this section should be restrictive. Traumatised children will probably suffer from this and it will probably have even less significance than in current practice how long a family has lived in Sweden. Unaccompanied children who have no relatives who can receive them at home are today usually allowed to stay based on “particularly distressing circumstances”, if they do not have their own grounds for asylum. These children may be allowed to stay because of enforcement difficulties pertaining to unaccompanied minors. But then they can be expelled when their residence permit is reconsidered on becoming 18.
Critique: Those who are allowed to stay as “others in need of protection” or because of “distressing circumstances” constitute only a small percentage of the number of asylum seekers. Most are children. To expel them serves no other function than to signal: Do not think that Sweden is a humane country where you will get help!
- Those who sought asylum after November 24, 2015 and receive a residence permit for subsidiary protection will not be reunited with their families in Sweden, unless they manage to obtain a permanent residence through work. If they apply anyway then an individual assessment will take place to judge whether it would “contravene Sweden’s convention obligations” to deny the application and in that case a permit can be granted. But the government states that this can only apply in exceptional cases.
- Those who applied for asylum at the latest by 24 November 2015 and receive temporary residence permits and those granted residence permits as convention refugees – regardless of when they apply – will be allowed to be reunited with their family. But as long as they have temporary permits then the applicant outside Sweden must be the spouse / partner or children under 18, or the parent of an unaccompanied minor. Both adults must be 21 years old and already married or cohabiting. Moreover, in many cases, those who are here must have a certain income; see below.
Comment: People who have not received permission to marry or have co-habited in their home country, for example same-sex couples from certain countries, will not be able to come here. Other exclusions include disabled adults taken care of by their family and parents of children who did not apply as unaccompanied minors.
- Adults must in many cases be able to support themselves and their family, and have a sufficiently spacious dwelling, for the family to come to Sweden. Note that this requirement applies not only to newly arrived but also to family immigration for those already resident in Sweden.
The subsistence requirement apply to those adults whose family members make an application after the temporary law enters into force on 20 July 2016. For refugees and persons with subsidiary protection there is then a subsistence requirement in three situations:
1) When the application for family reunification is not submitted within three months after the sponsor receives a residence permit,
2) when it would be possible to reunite in a country outside the EU, and
3) when a couple has not lived together a long time outside Sweden or can otherwise show that they have an established relationship.
For those who are not considered refugees or have subsidiary protection there is a subsistence requirement for applications made after 20 July 2016 even if the three conditions are met.
Critique: Most family members are as much in need of protection as the applicant. The family did not flee together because there are no legal channels to seek asylum. Asylum seekers are forced to get here in dangerous, costly and illegal ways. Therefore, some choose an adult to travel in advance. Others are split up during the journey. There are already many bureaucratic obstacles to family reunification that keep families divided. Preventing family reunification undermines the right of asylum, both through denying those who are entitled to asylum the right to family life and by preventing the only legal and safe way to save the family – family reunification. More children will die in the Mediterranean.
- The government wants to make mandatory the medical age assessment of asylum-seekers, as a key tool when unaccompanied children are not in possession of secured identity documents and there is doubt as to their age.
Comment: Formerly “medical age determination” in the sense of radiology was widely used. According to the Migration Court of Appeal an X-ray is “written evidence” that can be valued higher than a youth’s identity documents. The National Welfare Board presented guidelines a few years ago stating that a pediatrician should do the age assessment. There should be an overall assessment of several factors. X-rays can be a part of the evidence, but not decisive in themselves, because it is such an unreliable method. But the Swedish Migration Agency has not wanted to use the doctors ‘professional judgments but instead determined age based on doctors’ supporting evidence. In practice, X-rays have again become crucial. Therefore, most pediatricians today refuse to participate. Right now the Migration Agency is not ordering any medical age assessments. Ages are still changed but based on other grounds, such as a youth deemed as adult in another EU country or through the administrator’s discretion. An alteration of age (except in Dublin cases) should not be made until when the youth gets a decision in the asylum case. Then it may be too late for the youth to influence the assessment. But if the youth gets an indication that the age will be changed, then certificates can be requested from the accommodation centre, school, etc. and documents from the home country used to try to prove the stated age.
Critique: X-ray results can appear exact but in reality they lead to arbitrary rulings. If there are problems for adults pretending to be children, they must therefore be resolved in another way than with X rays – if children are not to suffer. If a child is assessed as an adult this results in loss of schooling, of a guardian, of psychological support, etc. The child is placed among adults and risks expulsion as an adult.
- All transport companies whose boats, buses and trains go to Sweden are required to check that passengers have ID documents – under penalty of SEK 50,000 per journey. This new “carrier liability” was processed rapidly in parliament and introduced on 4 January 2016.
Background: Ever since the EU countries opened their borders among themselves, no systematic border checks existed between them. Everyone who entered the European Union could travel on to other countries. As compensation, the EU imposed strict rules on border controls at the external borders, to non-EU countries.
To prevent unregulated immigration, the EU countries introduced new common visa rules in the 90’s so that persons from a wide range of countries had to apply for visas in advance to gain entry to the EU. The common visa regulation meant that visas would only be granted for short stays and not to asylum seekers. It is therefore not possible to obtain a visa to seek asylum. In 2001, a carriers’ liability regulation was introduced obliging carriers to take responsibility for checking that all entrants have a valid passport and visa. Meanwhile EU countries only granted asylum to people who managed to get into the country. Therefore, asylum seekers must travel to Europe illegally if they cannot make it overland to an external border crossing.
The Dublin Regulation means in brief that the EU country that granted entry to an asylum seeker also has to take responsibility for processing the asylum application. If the external border controls and the Dublin rules worked as intended, no distribution of asylum seekers would take place in the EU. Most would today be forced to stay in one country – Greece – as most reach Europe through that route. In practice refugees travel on from the external border. Dublin rules allow them to seek asylum anywhere if the border state has not registered them, but they are considered present illegally in every country until they seek asylum somewhere. This is because the EU has not allowed any legal way of entry for them.
When a person seeks asylum at a country’s border it must not directly reject the person. This is prohibited in the UN Refugee Convention. When Sweden requested exemption from the EU rules and imposed border controls with Germany and Denmark a few weeks ago, Sweden could start to reject those who did not want to seek asylum (i.e. those who had wanted to travel to Norway or Finland). But those who sought asylum in Sweden were not refused entry.
The Refugee Convention prohibits rejection at the border and deportations when a person risks persecution. However, it says nothing about how refugees can get to a country to seek asylum. When Sweden now implements ID checks, those who do not have identification documents are prevented from even reaching the Swedish border, and therefore cannot seek asylum here. If there had been a “real” carrier liability at the EU’s external border, with a requirement for an entry visa, there would be no refugees reaching Sweden other than by private cars and boats. Now only those who do not have identification documents are hindered, but this can be a considerable number because many refugees do not have any. Unaccompanied children can be particularly affected, because many of them have never had any identification documents. Some have grown up as undocumented in a neighboring country to the parents’ home country.
Critique: Border controls do not formally violate the right to asylum because each asylum seeker reaching Sweden may apply for asylum. But with the help of ID checks the right of asylum is non-operative. That the refugees can seek asylum elsewhere is of little comfort because Sweden’s actions have contributed to a “race to the bottom”. EU’s collective criminalization of asylum seekers’ journeys to the EU is now complemented by the individual countries’ competition to avoid having to accept asylum seekers, making it more difficult for them to get protection.
Prime Minister Stefan Löfven and Deputy Prime Minister Åsa Romson explained at the press conference on November 24 that they understood that the Government’s proposals would hit the refugees, and that they will eventually want to see other solutions such as a change in the Dublin Regulation. But they argued that those measures are necessary because Sweden needs a “breathing space”. When border controls and the first restrictions were announced earlier in the autumn, the government declared that “the limit had been reached”, referring to order and security being threatened in Sweden.
Critique: Not everyone shares the Government’s assessment that Sweden needs a respite. The crisis is in the refugees’ home countries and neighboring countries. Sweden is not facing a “system collapse”. Border checks and identity checks create more confusion than the presence of refugees. If the government had focused more intensely on addressing bureaucratic obstacles in reception and integration, listening to what staff and volunteers needed and what applicants could contribute with, and if profiteers had not been allowed to steer the availability of reception facilities, then maybe reception would have worked better.
There is much more to be said about the political situation than there is space for in this presentation of the government’s proposal. The people behind the People’s Campaign for the Right of asylum (www.folkkampanjforasylratten.se) do not have the same opinion about everything. But we want to gather everyone from different starting points who wishes to stand up for the right of asylum and stop the government’s action plan based on the points that the petition covers.