A. v Administrative Court of Stockholm [Decision 22 February 2019]
SE: The Migration Court of Appeal clarified the legal framework on supervision applied as an alternative to detention.
In this case the court held that in order for supervision to be used instead of detention, there must be a ground for detention in accordance with the Aliens Act that is compatible with EU law. If an alien is in custody, as part of a return procedure covered by the Return Directive, and submits an asylum application solely to delay or prevent the enforcement of a return decision, there are grounds for detaining the asylum seeker under the Aliens Act and the recast Reception Conditions Directive. When the conditions for detention in such a situation are met, there is also a basis for supervision. The court inter alia noted that the possibility for Member States to supervise an alien is not further regulated by the recast Reception Conditions Directive, but is left to national law. In addition, from Chapter 10 Section 6 of the Aliens Act it follows that the conditions for placing an adult alien under supervision are the same as for taking him or her into custody. Supervision can thus be used instead of detention, but this presupposes that there is a ground for detention for the issue of supervision to be raised at all.
According to the Migration Court of Appeal's assessment, Article 8 (3) (d) of the recast Reception Conditions Directive aims at the return procedure in its entirety, including both the preparatory phase and the implementation of the removal. In line with the reasoning of the CJEU in Arslan, it would undermine the purpose of the Return Directive (i.e. an effective return policy for third-country nationals staying illegally in the Member States) if the grounds for detention were automatically terminated in case the detainee submits an asylum application and no formal return decision has been made. If it can be established that the asylum application has been submitted solely for the purpose of delaying or impeding the enforcement of the decision on return, this constitutes an abuse of the right of asylum.
Detention/ Alternatives to Detention; Return/Removal/Deportation;
Sweden, Migration Court of Appeal [Migrationsöverdomstolen] , A. v Administrative Court of Stockholm [Decision 22 February 2019], UM6323-19
, 05 February 2020. Link redirects to the English summary in the EASO Case Law Database.