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Country of Decision : Sweden
Court Name : SE: Migration Court of Appeal [Migrationsöverdomstolen]
Date of decision : 02/07/2020
Type : Judgment
Case Number/Citation/ Document Symbol : MIG 2020:16

JY v Swedish Migration Agency (Migrationsverket)

SE: The Migration Court of Appeal held that for subsidiary protection to be revoked due to a crime, the beneficiary must have committed at least one serious crime and a complete examination of all the circumstances in the individual case must be made.

On 3 October 2012, the Migration Board declared JY to be in need of subsidiary protection. On 22 March 2019, the Migration Board decided to withdraw subsidiary protection. The grounds for the decision were, inter alia, the the fact that JY served a prison sentence of one and a half years for human trafficking in Germany and he also appeared with criminal record in Sweden. The Migration Board decided that there were serious grounds for believing that he committed such serious crimes that he must be excluded from subsidiary protection under Chapter 4, Section 2c, second paragraph of the Aliens Act. 

JY appealed against that decision to the Administrative Court of Stockholm, the Migration Court, which dismissed the appeal.

The Migration Court stated that JY committed a number of crimes, including migrant smuggling. In view of the penalty imposed in Germany, the fact that the offence was committed for remuneration in a relatively organised manner and concerned a larger number of persons, the court considered that the offence was serious. 

JY appealed against that judgment before the Migration Court of Appeal, claiming that the decision to revoke subsidiary protection should be set aside.  

The Migration Court of Appeal clarified that for a subsidiary protection status declaration to be revoked due to a crime, the alien must have committed at least one serious crime. When assessing the severity of the crime, a complete examination of all the circumstances in the individual case must be made.

The Migration Court of Appeal noted that JY has been convicted of a large number of crimes in Sweden and in Germany for human trafficking. In order for him to be considered excluded from subsidiary protection, it is required that at least one of these offenses is serious. None of the crimes for which JY has been convicted in Sweden are of such severity as is required for him to be excluded from subsidiary protection. With regard to the human trafficking for which JY was convicted in Germany, the lower courts have referred to JY's own information and an extract from the European Criminal Records Information System, ECRIS. It was not possible to deduce from the ECRIS extract what circumstances formed the basis of the judgment of the German court. The information provided by JY was vague and to some extent contradictory. Under these circumstances, the inquiry had not been sufficient to make a complete assessment of all the circumstances. The Migration Court of Appeal noted that the German judgment should have been obtained before deciding whether JY's subsidiary protection status should be revoked. The shortcomings in the documentation were of such a nature that the decision of the lower court must be revoked and the case was sent to the Swedish Migration Board for new processing.

Cessation of protection; Exclusion; Renewal/Withdrawal/Revocation of Protection; Subsidiary Protection;

National law only (in case there is no reference to EU law/ECHR);

EMN REG Network

Sweden, Migration Court of Appeal [Migrationsöverdomstolen] , JY v Swedish Migration Agency (Migrationsverket), MIG 2020:16, 02 July 2020. Link redirects to the English summary in the EASO Case Law Database.