Downgrading asylum standards to coerce solidarity: Sweden as a case in point
13 Friday May 2016
By Eleni Karageorgiou, Lund University, Sweden
Asylum in Sweden: a temporary “respite”
For at least a decade now, Sweden has been amongst the EU countries with the highest rate of first time registered asylum applicants compared to their population. Between 2010 and 2014 Sweden received, on average 24.4 applicants per 1,000 inhabitants. According to the UNHCR Asylum Trends report, the 28 Member States of the European Union registered 570,800 new asylum claims in 2014. Germany and Sweden accounted for 30 (173,100) and 13 (75,100) per cent of all asylum claims in the EU, respectively. In the Nordic Region, Sweden was the main destination country accounting for 70 per cent of all new claims registered.
The landscape has changed significantly after June 2015, when Sweden experienced a 197% increase compared to previous months. The number of monthly applications in August 2015 was 11,735, which more than doubled to 24,261 in September 2015, and increased by a further 61% to 39,055 applications in October 2015. Of a total of 163,000 asylum applications received by Sweden in 2015, 114.000 were lodged within the last three months, September – December 2015. To this number, one should add another 1900 refugees who are yearly resettled in Sweden, through the Swedish refugee quota system.
The increased arrivals of individuals seeking protection in 2015, particularly after the summer were perceived by the government, political parties and local authorities as stretching the state’s reception capacities to its limits. Municipalities have reported that they can no longer manage reception in a secure manner, while the Swedish Civil Contingencies Agency has signaled that important public services cannot cope with the strain. According to the Swedish government “Sweden can no longer guarantee a roof over the head of those who make their way to our country and in the last week people have had to sleep outdoors”.
Already in October 2015, the ruling Social Democrat-Green coalition and the four parties in the center-right alliance opposition agreed on a range of measures that would contribute to a more coherent and robust system for the reception and settlement of asylum seekers within Sweden. To that end, asylum seekers were to be distributed across the country so that all municipalities take in a fair share. At the same time, the parties expressed their commitment to promote a “shared responsibility” system between the Member States of the European Union, claiming that “Sweden has taken greater responsibility than any other country in the Western world…but no country can handle this challenge alone”.
The following month and while asylum applications were on the rise, Sweden adopted a tougher response aiming at reducing the number of asylum seekers arriving in the country. The government held a press conference on 24 November 2015 where it presented a set of forthcoming amendments to domestic alien’s legislation and provisional measures to control and restrain entry into its territory. In the meantime, the European Commission proposed Sweden to be temporarily suspended of its obligations under the EU relocation mechanism.
On 11 Feb 2015, the Swedish Government released the first draft of the legislative “Proposal of a law on limitations of the possibility to receive residence permits in Sweden” which was sent out to competent authorities for consultation. It is worth noting that over 60 institutions around the country commented upon the proposal, with most of them (see for example Amnesty, UNHCR, Uppsala University, Lund University) being particularly critical, pointing out its shortcomings as regards protection considerations and clarity. After the completion of the consultation process, the government slightly revised the initial draft, insisting though on the proposal’s fundamentals.
The new law introducing the proposed amendments is expected to enter into force by 20 July 2016 pending adoption by the Swedish parliament. It will be in force for three years and will be applicable for decisions taken within this period. Briefly, the new law includes the following exceptions to the provisions of the current Swedish Aliens Act:
- persons granted international protection will no longer be eligible for permanent residence permits, after a proposed reduction in the duration of the permits to 3 years for refugees and 13 months for subsidiary protection beneficiaries, with the possibility for extension if the protection ground continues to exist;
- A restriction of the right to family reunification for refugees is introduced, as they will have the right to be reunited only with nuclear family members, namely spouses, partners or children under the age of 18. Persons eligible for subsidiary protection are in principle deprived from their right to family reunification unless a rejection would be contrary to a Sweden’s obligation under international law;
- Finally, a permanent residence permit may be granted to applicants whose first temporary residence permit expires upon the condition they can prove sufficient income to support themselves. For those under the age of 25, a permanent permit will only be granted if they have completed upper secondary education, and not solely through employment. Minors may be granted permanent residence permit in limited circumstances in light of their health condition.
Two additional limitations introduced with the new law are worth noting. Firstly, Swedish law provides for a third ground of protection encompassing individuals who do not qualify as refugees or beneficiaries for subsidiary protection. This is a domestic provision lacking equivalence in the Qualification Directive and Refugee Convention. Pursuant to Chapter 4 Section 2a of the Aliens Act, Sweden used to grant the right to a residence permit to people “otherwise in need of protection” namely those fleeing severe conflicts, but for whom the threshold of “armed conflict” required for subsidiary protection is not fulfilled. Individuals fleeing environmental disasters in their country of origin were also covered by this provision. This ground of protection is now removed.
Secondly, Swedish law provides for a possibility to authorize the residence of aliens in its territory, based on “exceptionally or particularly distressing circumstances”. In particular, pursuant to Chapter 5 Section 6 of the Aliens Act, Sweden may grant a residence permit taking into account the personal circumstances that have to be such that the alien’s situation appears particularly distressing. Factors usually included in the overall assessment of the person’s personal situation are social exclusion, victimization as a result of torture, trafficking or other similar severe experiences in the country of origin. According to the new proposal, there will still be a possibility to a residence permit on such grounds, but only in cases where returning the person back to their country of origin would violate Swedish obligations under international law. This amendment raised much criticism during the consultation process, inter alia by the Swedish Migration Board, which is now required to determine on a case-by-case basis Sweden’s international obligations that may be violated if a decision on return is to be taken. As suggested by the authority “this lack of clarity is problematic and leads to difficulties in the implementation process”.
At the same time, in order to control entry to its territory, Sweden has secured a temporary exemption from the EU’s Schengen rules, announcing the reintroduction of border controls to all means of public transportation, through a regulation applicable since 4th of January 2016 valid for 6 months. Such measures are justified as maintaining law and order and safeguarding national security. This is actually the first time since the establishment of the Nordic Passport Union in 1957, that people travelling to Sweden from another state by bus, train, or boat are required to show a valid photo identity card with a photo. As regards asylum seekers and refugees, it implies that those with a valid ID may pass, while those without, may not. Such practice was followed by the Danish government who imposed border controls on its southern border with Germany, in an attempt to control the number of people seeking protection arriving in these territories.
The above description does no justice to the lengthy process and various amendments in the Swedish legislation, it does provide though the basis on which the objectives of the new measures and questions on solidarity are discussed in the next paragraphs. A nuanced approach to Sweden’s legislative backward stepping will be attempted moving beyond the overstretched-capacities issue. The argument to be made is that precisely as for almost all EU Member States, the asylum situation in Sweden has raised serious concerns, proving the existing system ill-adapted to the new circumstances. Nevertheless, the increased numbers of arrivals is one side of the coin. Strictly politically, the decision for such a policy shift was heavily informed by the general situation in the EU as well as by the stance of other EU Member States and less by the situation in Sweden as such, therefore it should not be reduced to a mere numerical issue. The question to be asked is whether and to what extent an EU Member State may downgrade protection standards and deny entry in its territory to asylum seekers and refugees without proper identification documents based on the claim that this would evoke more EU solidarity and responsibility.
Coercing interstate solidarity by undermining protection
The aforementioned legislative proposal aims, according to the official statement, at adjusting “the asylum regulations to the minimum level in the EU so that more people choose to seek asylum in other EU countries”. This basically means that Sweden no longer wishes to be perceived, as the “soft touch” country with a refugee welcoming policy. To that end, it seeks to convey a twofold message: on the one hand it targets potential protection seekers in an effort to dissolve the illusion of Sweden being the best destination choice by offering exceptional treatment compared to the rest of Europe; on the other hand it seems to signal its unwillingness to continue offering itself as the easy way out for other EU Member States, which deflect their European and international asylum responsibilities. In the absence of a concerted way to handle the current refugee situation in Europe, Sweden appears willing to subscribe to an individualistic approach to asylum, followed lately by many EU Member States, translated into rights-slashing and strict measures of border controls to diminish the number of asylum applicants.
Leveling down standards to restrain the number of protection seekers, is certainly not a new trend in European asylum policies. The asylum debate in Europe for the past 15 years has been characterized by a concern about the increasing number of asylum applications and their uneven distribution among countries. There appears to be a widely held belief that the unequal distribution of asylum applications across Europe is due to the relative restrictiveness of states’ asylum policies: the stricter the asylum policies, the lower the number of applications registered in a county. Although this view has been challenged by scholars, it has informed the EU’s attempts to harmonize national asylum legislation in order to prevent a potential race to the bottom in protection standards and to eliminate policy differences among Member States. The adoption of common norms is suggested to constitute a form of solidarity between Member States who basically commit not to minimize reception and asylum standards and thereby guarantee refugees a minimum level of protection. This has provided the material basis for solidarity, which since the entry into force of the Lisbon Treaty has been introduced to primary EU law as a governing principle of EU policies on asylum, immigration and border management (Article 80 TFEU).
Despite the fact that solidarity as stipulated in the Treaty is state-oriented (“between the Member States”), it seems that when it comes to legislation designed to promote protection and uphold the right to asylum and the prohibition of non-refoulement, solidarity cannot be divorced from human rights considerations. And this begs the question: does the fact that many EU Member States are not showing a commitment to responsibility sharing, circumventing their European obligations, provide Sweden with a justification or even a right to deny protection to those in need?
From a political point of view, such a justification may sound reasonable, even necessary. From a legal perspective though, this is questionable, to say the least. Sweden, by actively sealing its borders for persons with no valid IDs, raises the risk for many people fleeing war and violence to end up in countries where their right to asylum is not guaranteed. History proves that rejection at the frontier is not an uncommon response in cases of “mass influx” of refugees. Article 33(1) of the 1951 Refugee Convention, by which Sweden is bound, provides that no one shall be expelled ‘in any manner whatsoever’ to the frontiers of territories where their lives or freedoms may be in danger. This provision applies to recognized refugees as well as asylum seekers, and there is strong academic consensus that this provision applies to those presenting themselves at the border.
Perhaps, a stronger argument can be made that Swedish actions are not in full compliance with EU and European human rights law. Individuals with a genuine need for protection but without a valid ID are denied entry to Sweden, without being properly informed by the personnel checking the documents about their right to ask for asylum and without being referred to the competent authorities. For the sake of the argument, it is appropriate to clarify that, even if supposedly Denmark is a ‘safe country’, this doesn’t guarantee that asylum seekers denied entry in Sweden will get the protection they are entitled to (see MSS case) there and won’t be pushed further to the South by the Danish authorities as a result of the restrictive-policies “domino”. Thus, Sweden’s claim that persons affected by the ID checks “are already in safe countries and nothing prevents them to apply for asylum there” is rather weak.
In addition, the fact that Sweden removes the right to a residence permit for “persons otherwise in need of protection”, namely those who don’t qualify as refugees and beneficiaries for subsidiary protection is also problematic. The 1951 Refugee Convention may not explicitly protect people fleeing their countries due to environmental disasters. Equally, Article 15(c) of the Qualification Directive may not include in its wording, individuals who escape prolonged conflicts or civil disturbances in their country of origin. Yet there may be cases similar to those that have been so far adjudicated by Courts (i.e. Diakite) where individuals are eligible for protection. The point to be made here, is that until now Sweden has explicitly recognized the right to protection to certain groups of individuals, following human rights standards set by Courts. It now, though, reserves this right and practically limits the grounds on which applicants can claim protection. Equally, Sweden makes protection based on other, mainly humanitarian grounds dependent on whether possible return would entail a violation of its international obligations. This means that potential applicants falling under this category will have to rely either on their attorney’s abilities or, chiefly, on the decision-authorities’ discretion. It remains to be seen how the Swedish Migration Board and Swedish Courts will decide upon such cases.
Taking the above into consideration, solidarity and cooperation between states can certainly be a solution towards more and better protection, yet lack of it cannot provide a legitimate basis for a protection respite. This, chiefly because of the following reason: the orthodox and legally acceptable way to give effect to solidarity amongst states in the EU would be for Sweden to initiate the application of the different solidarity mechanisms provided for, at EU level. In particular, Sweden and other EU states experiencing equivalent pressure may invoke instruments such as the Temporary Protection Directive, request technical assistance by the European Asylum Support Office, demand more EU funds to cope with the increased costs, confront other EU Member States for non-compliance with EU law through the Court of Justice, before diving into a renationalization of asylum policies with unclear consequences on individual rights. Undoubtedly, one has to acknowledge that a group of Member States – amongst them Sweden and Germany – tried, at a political level, to push the others on more fair sharing, but failed to get any results. Yet, as long as solidarity has been positivized in EU treaties, there are legal proceedings that can be followed and coerce compliance, if such positivization is to have any legal implications for Member States, at all. Admittedly, this is politically more aggressive and would demand lengthy consultations. Nevertheless, it should still be appreciated, at least as a symbolic move. Instead, Sweden decided to coerce solidarity amongst Member States by compromising and ultimately de-solidarizing refugee protection, which can be hardly compliant with the letter and spirit of Article 80 TFEU.
Solidarity to control versus solidarity to protect
To sum it up, by proposing the new legislative amendments in its asylum and border policies, Sweden does nothing but opting for more restrictive measures in order to reduce the number of protection seekers in its territory and shift responsibility. This is, as earlier suggested, not a new phenomenon, at the EU level. There is, however, a remarkable difference between Sweden and its predecessors. Sweden does not compete with the rest of the EU Member States. It competes with itself. Following the shift in focus from “minimum” to “common” standards that the development of a Common European Asylum System (CEAS) has generated, evident in the Lisbon Treaty and the recast asylum legislation (RCD Article 4, APD Article 5), Sweden has consciously, over the past years, developed an asylum system that goes beyond what is, at minimum, required by international and EU law. Faced though with an increasing xenophobic sentiment within the society, in combination with the absence of coordination and common approaches to asylum in the EU, it gave in to the nationalist protectionism long embedded in the EU asylum and migration policies at large.
Unsurprisingly, this won’t change much in reality. As it has been scholarly suggested, asylum legislation is but one determinant affecting the choice of destination made by a person seeking protection. Availability of social networks or language and history ties, for example, could be of far greater significance. Sweden is much aware of that, this is why the symbolic value of the message it seeks to convey, weighs more. On the other hand, in practice, even if the proposed amendments are of temporary nature, Sweden has set a precedent of backward stepping, no matter what a state has progressively achieved in terms of human rights protection and legal developments. At the same time, what such practices reveal is the dimension of EU solidarity, forged on the basis of narrowly economistic and nationalist grounds which unpacks CEAS inherent tension: security and control versus human rights protection, solidarity amongst Member States versus asylum. If the principle of solidarity and fair sharing of responsibility, as enshrined in EU treaties is to have any legal implications whatsoever, Sweden’s recourse to existing solidarity mechanisms should be prioritized, while lack of solidarity cannot justify shift of responsibility. Otherwise, EU asylum solidarity is merely equated with charity and political rhetoric, destined to remain a nice word yet, an empty legal concept.
