The Swedish Migration Court’s duty to investigate

Doctoral candidate: Isa Cegrell Karlander

The project addresses the investigative responsibility of the migration court. The focus is thus on the role of the court – and the judges – in dealing with migration cases. The purpose is to generate new and deeper knowledge about how the Migration Court’s duty to investigate can be understood and how it is applied in practice today.

As the Aliens Act does not contain procedural regulations aiming to provide procedural guidance or rules of evidence in general, the migration court must turn to Section 8 in the Administrative Court Procedure Act (FPL), which establishes that the court must ensure that the case is as well investigated as its nature requires. This means that the court bears the main responsibility for the adequacy of the investigation of a case. What demands are to be placed on the extent and quality of the investigation depends on the type of case. It is thus impossible to provide a general answer to the question of when the court’s investigative responsibility has been fulfilled.

In practice, this can be a matter of to what extent the judge is to lead the procedure, for example. What can actually be expected of the court during a session when the parties do not ask questions about matters that are of central importance to the case? Should the judge pose supplementary questions and thereby salvage an inadequate investigation? Or, considering that it can be said to be incumbent on the parties to present the investigation upon which the court is to base its judgement, should the court refrain from supplementary questions even though the investigative material is unsatisfactory? Has the court satisfied its investigative responsibility under Section 8 of FPL by summoning the parties to an oral session?

It is not especially controversial to claim that migration cases constitute somewhat of an odd bird among administrative cases. Migration cases are sometimes characterised as permit cases in which the individual (asylum seeker) attempts to acquire a benefit (residency permit) from the community; a so-called beneficial decision.  In beneficial decisions the individual normally bears the investigative burden and the burden of proof. But even if migration cases are counted among these beneficial permit decisions, at the same time they bring to the fore human liberties and rights. This latter aspect entails that the demands regarding the investigative responsibility of the court in migration cases must reasonably be placed higher than in other cases involving applications (see amongst others MIG 2006:1).

The investigative responsibility in migration cases often involves the investigation of conditions in other countries. This requires a good knowledge of the political conditions in the asylum seeker’s home country in order to determine what type of political activity or religious affiliation might lead to persecution there. Even though it may theoretically be clear that the court must always reach an independent determination of the situation in the country that the alien’s need for protection is to be tested against, in practice it is not self-evident how this is best accomplished. To be sure, by dint of its very investiture, a court has both the right and obligation to take the initiative for a supplementary investigation when necessary. But against the background of the fact that the Country Information Office of the Migration Board is an expert authority regarding knowledge of countries at the same time as the Board’s Administrative Procedure Office is a party in the court procedure, opinion is divided as to whether the court is obligated ex officio to bring information about countries to bear and whether the court actually has adequate knowledge to independently assess information about a country.

The court’s duty to investigate can be studied from many perspectives, and of course, alongside the Administrative Court Procedure Act and the Aliens Act, the European Court of Human Rights, EU directives, and international conventions affect how the court deals with cases.

My approach is to investigate what the investigative responsibility in Section 8 of FPL entails for the migration court, how the courts and individual judges relate to that responsibility, and why any differences in positions might arise.

The subproject is a dissertation project at the Department of Law, Uppsala University. Main supervisor: Torbjörn Andersson (Uppsala). Deputy supervisors: Gregor Noll (Lund) and Rebecca Stern (Uppsala).

Read a brief summary of the subproject (in Swedish, June 2015).