KD v Swedish Migration Agency (Migrationsverket)
SE: The Migration Court of Appeal ruled on the grounds for detaining a person under the Reception Conditions Directive
KD applied for asylum in Sweden for the first time in October 2017. The Migration Agency registered him as absconding and dismissed his case. KD applied again for asylum both in Sweden and in other European countries, under different identities. After being transferred from Denmark to Sweden in accordance with the Dublin III Regulation, on 21 January 2020 he stated that he wished to apply for asylum. On the same day, the Migration Agency decided to detain him and the application for asylum was registered the following day. On 2 February 2020, the Migration Agency decided, inter alia, to reject KD’s application for a residence permit, to deport him from Sweden and to detain him.
KD appealed against the decision and the Migration Court decided to detain him. The Migration Court found that there were grounds for continued detention in accordance with the provisions of the Aliens Act. It held that KD was covered by the Return Directive once returned from Denmark to Sweden. On 22 January 2020, when he applied for asylum, he became subject to the Reception Conditions Directive, that it could be assumed that he made an application for asylum solely in order to delay or frustrate the enforcement of a return decision, and that there were grounds for detention under the Reception Conditions Directive. KD appealed, seeking also the annulment of the detention order. He argued that there were insufficient grounds for assessing that asylum was applied for the sole purpose of frustrating or delaying possible enforcement and that he had not deliberately departed from his asylum procedures in Sweden or Germany.
The Migration Court of Appeal held that KD had applied for asylum at the time of the Migration Court’s decision on continued detention and was therefore subject to the Reception Directive. It further held that there are no conditions under Article 8 (3) (d) of the Reception Conditions Directive to detain an asylum seeker under the Aliens Act when he or she was not detained as part of a return procedure covered by the Return Directive at the time of the asylum application. Furthermore, the provisions of the Aliens Act on detention do not provide the same opportunities for detention as the Reception Directive. The directives' grounds for detaining an asylum seeker for the purpose of determining or confirming the applicant's identity or nationality or for the purpose of determining the factors on which the application is based cannot therefore be applied when there is no support for this in the Aliens Act.
Detention/ Alternatives to Detention; Reception/Accommodation;
Sweden, Migration Court of Appeal [Migrationsöverdomstolen] , KD v Swedish Migration Agency (Migrationsverket), UM2352-20
MIG 2020: 14, 30 June 2020. Link redirects to the English summary in the EASO Case Law Database.