A Temporary Asylum Law and Secret Legal Cases: The Swedish Migration Bureaucracy and its Exceptions

Guest post by Martin Joormann, PhD Candidate in Sociology of Law at Lund University. Holding BSc degrees in International Relations and Sociology from the University of Gothenburg, Martin completed a dual-degree MA in Social Sciences, taught jointly at Middle East Technical University Ankara and Humboldt University Berlin. This is the seventh instalment of Border Criminologies’ themed series on 'Seeking Refuge in Europe' organised by Monish Bhatia.

My doctoral research focuses on asylum case decision-making in Sweden and draws on the review of over 200 last-instance decisions. Since the implementation of the Aliens Act of 2006 and subsequent establishment of the Migration Courts on 31^st of March 2006, these decisions have been published as ‘precedents’ (in Swedish vägledande avgöranden) by the Migration Court of Appeal (hereafter the MCA). It is worth noting that these are the only legal decisions on asylum applications which are published in an official online-database of Sweden’s Courts – and, since 2015, further publicized by the MCA via Twitter. In contrast, asylum decisions taken at the first-instance Migration Board are, in general, ‘classified’ (sekretessbelagd), while the decisions of the second-instance Migration Courts are ‘public documents’ (offentliga handlingar) in the sense that most of the information which they include can be requested via email from the respective Court.

In addition to reviewing these cases as the core data of my socio-legal study, I have interviewed Swedish Migration Court judges. In 2015 and 2016 – coinciding with the period of time that (also) in Sweden came to be called ‘the refugee crisis’– I conducted eight semi-structured interviews with six different judges who take decisions at the Migration Courts in Malmö, Gothenburg, Stockholm and Luleå, and also at the MCA in Stockholm. According to the two judges whom I interviewed at the MCA, I was the first researcher whom they had ever met for an interview, and in general there are few studies with Swedish judges as research participants. As is so often the case in studies of border control, the lack of empirical research reflects, at least in part, the difficulty of gaining access to the field.

Since the initial interviews in 2015, much has happened. Counted per capita and according to the statistics of UNHCR, together with Malta, Sweden hosts the largest refugee population in the Global North: around 17 refugees per 1000 inhabitants. These numbers, however, should be contextualized before background of the reality that, in 2015, more than 85% of all refugees under UNHCR-mandate were living in the world’s ‘developing regions’, i.e. ‘low- and middle-income countries’– for instance 183 refugees per 1000 inhabitants in Lebanon. Nevertheless, in 2015, the dominant discourse in the Swedish-speaking public sphere about asylum seekers shifted from being relatively accepting to a demand for greater controls, and ‘the refugee crisis’ became synonymous with an existential problem for Sweden that could lead to a 'collapse of the system’. Subsequently, the red-green minority government of Social Democrats and Green Party adopted this discourse of systemic crisis. Since 4^th of January 2016, a ‘strengthened border control’ (förstärkt gränskontroll) in the direction from Denmark to Sweden has been in force. These controls were, until yesterday (4 May 2017), known as ‘the ID-controls’ (Id-kontrollerna), referring to the regulation that every public transport passenger was ID-checked still in Denmark. As of today, in order to facilitate the movement of commuters (as wanted border-crossers) between Denmark and Sweden, the controls’ previous main function of preventing potential asylum seekers (as unwanted border-crossers) from crossing to Sweden has been re-framed in terms of the 'control of those large flows' (kontroll över de här stora flödena), as the chief of the Swedish Border Police put it in a recent newspaper interview.

On 22^nd of June 2016, the Swedish parliament issued a considerably more repressive package of regulations, significantly curtailing Swedish asylum law. Valid from 20^th of July 2016 onwards, this legal change was meanwhile legitimized as means (or ‘steering medium’ in Habermas’ terms) for political ends, i.e. deterrence by diminishing the ‘pull factors of refugee flow’ to Sweden.

The political discourse that led to these changes had evolved around the adherence to a European ‘minimum level’ (miniminivå) of refugee rights. With these new regulations, if only as ‘the temporary law’ (den tidsbegränsade lagen, literally ‘the time-limited law’), the approach of limiting refugee rights to a minimum in the European context was thus legalistically legitimized for the following three years (until 19 July 2019) to provide Sweden with ‘breathing space’ (andrum). The national parliament in Stockholm thereby produced legal norms which, from the beginning, were framed in terms of a temporary exception. In practice, among other significant infringements of refugee rights, the arguably most important change became the shortening of residence permits. For asylum seekers in Sweden, excluding only those 'between 1,700 and 1,900'  re-settled quota-refugees whom Sweden accepts per year, the most fortunate outcome would from now on be three-year residence permits based on refugee status. For the vast majority of applicants (in previous years it had been about 98%), however, receiving the status of ‘in need of subsidiary protection’ (alternativt skyddsbehövande) would result in 13-months residence permits.  

This being said, asylum seekers who are rejected and, thus, receive an expulsion order, can still appeal such rejections. However, during my field research at the second-instance Migration Courts, where – if right to appeal is granted – the decisions of the first-instance Migration Board are either confirmed or corrected, I started to understand that there are also cases which are not decided at Court. When searching through the data, I found a definition of the cases in question: ‘security cases’, ‘[…] which according to 1 chapter 7 § [Aliens Act] are cases where the Security Police for reasons of national security advocates that an alien shall be expelled’. Then I returned to the MCA in order to interview an experienced judge who regularly takes part in the formulation of precedents, and I received further explanation:

‘[W]e have these cases called security cases and these are cases where the Security Police believes that a person shall not be allowed to stay because s/he exerts security risk. And those cases, there almost everything is secret, but they are not anything that we attend to here […].’

When I thereupon asked about the final decisions on those cases, the judge replied:

‘It is the government that takes the decision; our task is only to comment to the government. And these comments become – well some parts of it maybe can become public but most is secret.’

Considering this information which I received during an interview at the MCA, it becomes clearer how the decision-making process changes as soon as the case is deemed to be a ‘security case’. First of all, the case is not anymore decided within the confines of the Swedish migration bureaucracy, which since 2006 consists of the aforementioned three legal instances: the first-instance Migration Board, the second-instance Migration Courts and the last-instance Migration Court of Appeal. Instead, as the aforementioned precedent on the case UMS4-06 states, ‘security cases’ become cases in which 'the Security Police for reasons of national security advocates that an alien shall be expelled' (UMS4-06, p. 1). Now, if the 'alien' sought asylum, the respective ‘security case’ includes an asylum claim. As it is, however, first the Swedish Security Police that 'advocates' for an application to become a ‘security case’ and, if the first-instance decision is appealed, 'the government that takes the decision', the decision-making process about this application becomes an exception within the framework of the Swedish migration bureaucracy. Thus, in such cases, also an asylum application can be securitized in the sense of becoming an issue of national security which will not be decided within the confines of the migration bureaucracy.

Conclusion

Swedish asylum law, particularly in the wake of the so-called refugee crisis of 2015, is marked by exceptions. Since 22^nd of June 2016 (in force since 20 July 2016), it has been framed as a time-limited exception, officially termed as (the) ‘temporary law’. Additionally, my analysis of the precedents of Swedish asylum law, combined with my field research of conducting interviews with Migration Court judges, has led to the following finding: Certain cases, which can include applications for asylum, are securitized and thereby become ‘cases where the Security Police for reasons of national security advocates that an alien shall be expelled’. In other words, these so-called security cases become exceptions as they are not decided within the confines of the migration bureaucracy, because the applicant shall be expelled based on, in the first place, the assessment of the Security Police. In the words of a judge whom I interviewed at the Migration Court of Appeal, if a first-instance expulsion decision is appealed, it is instead ‘the government that takes the decision’, while the judges’ task becomes ‘only to comment to the government. And these comments become – well some parts of it maybe can become public but most is secret.’ Finally, I may therefore propose the argument that, today, there are substantive (the so-called temporary law) as well as procedural (the so-called security cases) exceptions to the rules of Swedish asylum law. Hence it is not only in the aftermath of ‘the refugee crisis’ (of 2015) – as a period of time which was discursively constructed as a ‘state of exception’ – that the Swedish migration bureaucracy had (and has) its exceptions.

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How to cite this blog post (Harvard style)

Joormann, M. (2017) A Temporary Asylum Law and Secret Legal Cases: The Swedish Migration Bureaucracy and its Exceptions. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/05/temporary-asylum (Accessed [date]).