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HEMRÅD & TIPSThe temporary law

What does the temporary asylum law mean for those seeking asylum?

On July 20, 2016 a new law entered into force, the law on temporary restrictions to obtaining a residence permit in Sweden. The Act was intended to apply up to and including July 19, 2019, but it has now been prolonged and will be valid up to and including July 19, 2021. The temporary act is part of a policy package to reduce the number of asylum seekers which the government announced on 24 November 2015.

The main content of the temporary act is that asylum seekers can only get temporary residence permits. Family reunification is restricted in several ways. In addition, the category “others in need of protection” is removed completely from the temporary act and residence permits based on compassionate grounds will be applied much less frequently than before.

 

Published 16-08-02, uppdated several times, latest being 19-08-04 including changes in connection with the prolongation of the law in July 2019.

Swedish version

Contents

Which asylum seekers can get a residence permit?

What is the duration of the permits?

Appeals and impediments to removal

Will the family be reunited?

Links to the most important legal positions from the Migration Agency regarding how the law should be interpreted

 

Which asylum seekers can get a residence permit?

Asylum seekers who are deemed to be refugees under the Geneva Convention or based on alternative or subsidiary grounds for protection according to the EU Qualification Directive may obtain a residence permit. This is not changed by the temporary act.

To qualify as a refugee, you must be able to show that you risk personal persecution on one or more of these grounds: nationality, religious or political beliefs, gender, sexual orientation or membership of a particular social group. These reasons are listed in the Aliens Act (the basic law relating to asylum seekers and others).

Not all those in danger of being killed or injured during an armed conflict may be able to prove that they have such personal reasons. But then they may qualify for subsidiary protection, if the conflict is so widespread in the home country that any civilian can risk being the victim of indiscriminate violence.

Read more about the reasons that count in FARR's “Good Advice for those seeking asylum in Sweden” page 13

The category "others in need of protection” is a smaller group. Only about 20 people a month have been allowed to stay on this basis the period before the temporary law come to force. They are asylum seekers who may be in danger for any personal reasons related to the conflict in the country, but do not fit into the categories for asylum. Most of them are stateless persons. The status of "others in need of protection" cannot be used under the temporary law. Those who possibly would have fitted into this category will not receive a residence permit.

Those not considered in need of protection by any of these definitions have before the temporary act came to force  been able to request a residence permit in Sweden based on "exceptionally distressing circumstances" or for children "particularly distressing circumstances", in other words humanitarian grounds. This category requires very compelling reasons; being dangerously ill, for example, children being placed in foster homes, or children who are severely disabled and traumatized. This section on distressing circumstances is interpreted in a more limited way in the temporary law and only if an expulsion would be contrary to "the Swedish commitment to international conventions”. It has appeared that this is very difficult to prove. The comitments that has been used in a few cases are the European Convention of Human Rights or the Convention of the Rights of the Child.

In cases like this, it will be important for your lawyer to be familiar with European law and international conventions so as to argue from those perspectives.

A larger group who used to get permits based on distressing circumstances is unaccompanied children who have no relatives (or cannot locate relatives) who can take care of them back home. These will not receive a permanent residence based on distressing circumstances. But they will still be able to get temporary permits since expulsion cannot be carried out without locating relatives or parents. But it also means that they can be deported later, at the age of 18. At that age they are no longer seen as in need of support in their home country. If they cannot prove they have their own grounds for asylum, they risk being deported.

NB! Children and families with children who sought asylum at the latest on November 24, 2015 are exempt from the limitations concerning the reasons for the residence permit. They will be able to obtain a residence permit on the grounds that are applicable under the ordinary law on aliens, unless the children have become 18 years before the decision is taken. But the Swedish Migration Agency has stated that some unaccompanied minors can obtain temporary permits even according to the regular Aliens Act, if it is because they do not have anyone who can receive them at home. This will then affect even children who sought asylum no later than 24 November.

 

For how long are the permits?

Residence permits for persons granted refugee status are valid for three years. They are allowed to stay because they are considered individually persecuted based on one or more of the grounds mentioned above. The status assessment depends both on the situation of the individual and the current situation in the country of origin as judged by the Migration Agency.

Residence permits for those who do not qualify as refugees but for subsidiary protection will only be valid for thirteen months at first. This applies for example to war refugees, namely those who are allowed to stay because it is so dangerous in their home country that no one can be sent there, and who do not need to have personal reasons. Many Syrians have been granted subsidiary protection. If the residence permit is extended after thirteen months, it will be for two years.

Previously it has not made much difference if a person was classified as a refugee or granted a permit for any other reason. Nowadays it is important to mention the risk of persecution for any personal reasons, or if you belong to a particular social group that is especially vulnerable or have been personally involved in the conflict. If you receive a residence permit for subsidiary protection even though you have individual reasons, you are allowed to appeal or file an application to try and obtain refugee status.

Residence permits which are granted on the basis of distressing circumstances or because new evidence has turned up after a final rejection will also be valid for thirteen months or in the case of temporary hindrances to expulsion, twelve months or less.

This is the reason why many who are children today risk being deported at the age of 18. Most of those affected are unaccompanied children. But in some situations, it may even affect children in a family who do not have proof of individual protection grounds. It will thus become more important than ever that children's own asylum grounds are put forward.

During 2017 and 2018 several new articles have been inserted in the temporary act, meaning that some young persons can get longer residence permits if they attend school, or in certain cases even permit for the sole reason of attending school. See information about this in Swedish. It has also appeared that many unaccompanied children has got their age changed and are assessed as adults. Read report about this from FARR and others.

A person who has permit as refugee or subsidiary protection can be granted a permanent residence permit when the temporary permit has expired but only by having an income that he/she can support him/herself on. Anyone aged under 25 must have completed senior high school (gymnasium), a vocational course or the equivalent. During the time the temporary act applies, there is therefore no possibility of obtaining a permanent residence for the elderly, the sick or disabled who are unable to complete school or obtain an adequate income.

There is one exception that was introduced after criticism from the consultative bodies. A very seriously ill child can be granted permanent residency if the child otherwise absolutely cannot be rehabilitated. When the temporary act was prolonged, it was also added that children born in Sweden and who are stateless (lacking citizenship in any country) may in certain circumstances be granted permanent permission.

Children and families with children who sought asylum at the latest on November 24 2015 are exempted from the rules on temporary permits. They will be able to get permanent residence in the same way as in the regular Aliens Act. But some unaccompanied minors can receive temporary permits even under the ordinary law. For those representing unaccompanied minors it will be important to show that the obstacle is permanent and that the individual child needs a permanent solution.

Note that adults who did not seek asylum together with their children are affected by these rules even though their application was registered before November 24 2015 when the government announced that a new law was to be proposed.

The residence rights are the same for permanent and temporary permits. Those with a residence permit valid for more than a year are allowed to work or study and to get help from a municipality. They are not considered asylum seekers and are supposed to leave reception accomodation when they find housing of their own.

 

Appeals and impediments to enforcement

Anyone who has received a decision entirely in accordance with the regular Aliens Act and who appeals will have the appeal dealt with under the Aliens Act rules, not the temporary law.

People who received a final rejection of their asylum claim may still receive a temporary residence permit if new circumstances emerge that lead to a decision that an expulsion should not be enforced. The reasons that can be considered as "impediments to enforcement" are governed by the Aliens Act sections 12:18 and 12:19. These reasons have not changed in the temporary law. But a permit that is granted due to these impediments is assessed according to the temporary law, regardless of when the person's original application was lodged.

Those who can obtain a residence permit from the Migration Agency which it decides on directly according to the rules on impediments to enforcement under Section 12:18, will only obtain permission for twelve or thirteen months (unless the rule for critically ill children mentioned above is used). Anyone who is not granted a residence permit according to section 12:18 by the Migration Agency, but is granted a new examination under Section 12:19 can, if successful, get a three-year or a thirteen-month residence permit depending on the protection status granted.

Read more about impediments to enforcement in the relevant chapter in FARR:s “Good Advice to you who seek asylum in Sweden” p 83.

 

Will the family be reunited?

Relatives of those who received refugee or subsidiary status can be granted residence permits. But so long as the family member only has a temporary residence permit, it is only a husband /wife or partner or children under 18 who can apply, or the parent(s) of an unaccompanied minor. Both adults must be 21 years old and already married or cohabiting in the home country. 

There is no possibility to obtain a residence permit in order to begin living together, neither for a child over 18 nor a dependent person who has lived with the family. Another condition is that the person in Sweden probably will obtain a permanent permit in the future. So far, this has not been a problem as most people who have been granted asylum have been considered to have a good chance to obtain permanent residence.

For families to be reunited, the person in Sweden must be able to support him/herself and family members and have a large enough home. This support requirement applies not only to asylum seekers with decisions under the temporary law but also to relatives of people already living in Sweden even if they are Swedish citizens. The support requirement means that the person in Sweden must have some income left for themselves and their relatives, after tax and the rent being paid: 4923 SEK a month for an adult, 8133 SEK for a couple, 3007 SEK for children from the age of 7 and 2612 for younger children. The dwelling must consist of at least a kitchen and one room for two adults. If there are children, more rooms are required, but two children may share a room.

Unaccompanied children are not required to support their parents or siblings. Even families with at least one child staying in Sweden are exempt from the support requirement.

Refugees and beneficiaries of subsidiary protection can obtain exemption from the support requirement but in that case three conditions must be met: 1) The family members must apply within three months after a positive decision has been taken. 2) They must be unable to reunite in any other country. 3) They must already have been living together outside Sweden.

If you applied for asylum between November 24, 2015 and July 19, 2019 and were granted a residence permit for subsidiary protection, you were not entitled to family reunification when the temporary act came into force. Since July 20, 2019, your relatives can obtain a residence permit if they meet the requirements. They have not been able to apply within three months after you have been granted permission. Instead, they can avoid support requirement by filing the application no later than October 19, 2019, three months after the temporary law was amended.

Just as with distressing circumstances, there is a clause that says that if it were to "breach Sweden’s convention commitments" to reject it then a permit can be granted to a close relative. But this is just as hard to prove as in the cases of distressing circumstances.

 

Links to the most important legal positions from the Migration Agency for how the law is to be interpreted at first instance

These texts are challenging to read but are recommended to lawyers and other legal representatives. Only available in Swedish but the headings are translated into English below. N.B. the newly updated legal positions can be found at bottom of page.

Rättsligt ställningstagande angående innebörden av svenskt konventionsåtagande och artikel 8 vid tillämpning av 11 och 13 §§ i den tillfälliga lagen - SR 24/2016
(Legal position on the meaning of  Swedish Convention obligations and Article 8 when applying sections  §§ 11 and 13 of the temporary law - SR 24/2016)

Rättsligt ställningstagande angående praktiska verkställighetshinder - SR 25/2016
(Legal position regarding the practical impediments to enforcement - SR 25/2016)

Rättsligt ställningstagande angående skyddsbedömningen vid väpnad konflikt och gränsdragningen mot bestämmelsen om andra svåra motsättningar - SR 30/2016
(Legal position regarding the assessment of protection needs in armed conflict, and the boundary between the provisions concerning other severe conflicts - SR 30/2016)

Rättsligt ställningstagande angående prövning och bedömning av barns ärenden om uppehållstillstånd enligt 5 kap. 6 § och 12 kap. 18 § första stycket 3 utlänningslagen - SR 36 /2016
(Legal position regarding the examination and assessment of children's applications for a residence permit under Chapter 5. § 6 and Chapter 12. § 18 first paragraph 3 of the Aliens Act - SR 36/2016)

Rättsligt ställningstagande angående prövningsordningen enligt 12 kap. 18-19 §§ utlänningslagen beträffande flyktingar under den tid som tillfälliga lagen gäller - SR 39 /2016
(Legal position regarding the order of assessment according to Chapter 12. §§ 18-19 of the Aliens Act concerning refugees during the period the temporary law applies - SR 39/2016)

Rättsligt ställningstagande angående utredning och kontroll av omständigheter som kan utgöra verkställighetshinder enligt 12 kap. 18 § utlänningslagen - SR 40/2016
(Legal position concerning the investigation and control of circumstances that may constitute impediments to enforcement under Chapter 12. § 18 Aliens Act - SR 40/2016)

Rättsligt ställningstagande angående försörjningskravet vid anhöriginvandring - SR 03/2017
(Legal position regarding the support requirement for family reunion - SR 03/2017)

Rättslig kommentar angående övergångsbestämmelserna i den tillfälliga lagen - SR 05/2017
(Legal comment regarding the transitional provisions of the temporary law - SR 05/2017)

Rättsligt ställningstagande angående prövning av rätten till permanent uppehållstillstånd enligt 17 § lagen om tillfälliga begränsningar av möjligheten att få uppehållstillstånd i Sverige - SR 19/2017
(Legal position regarding assessment of the right to permanent residence under § 17 of the temporary law - SR 19/2017)

Rättsligt ställningstagande angående verkställighet av beslut som rör ensamkommande barn - SR 24/2017
(Legal position concerning the enforcement of decisions concerning unaccompanied minors - SR 24/2017)

Rättslig kommentar angående längden på ett tidsbegränsat uppehållstillstånd vid familjeanknytning om den sökande har ett pass med kort giltighetstid eller saknar pass när tillståndet ska tidsbegränsas enligt tillfälliga lagen - SR 05/2018
(Legal comment regarding the length of a temporary residence permit based on family ties in cases where the applicant's passport has a shorter duration or lack passport when the residence shall be temporary according to the temporary law - SR 05/2018)

Rättsligt ställningstaganden angående tillämpning av artikel 3 i Europakonventionen då sjukdom åberopas - SR 37/2018
(Legal position concerning the application of Article 3 of the ECHR when severe illness is claimed - SR 37/2018)

Rättsligt ställningstagande angående uppehållstillstånd för studier på gymnasial nivå - SR 40/2018
(Legal position regarding residence permit for studies on "gymnasium" level - SR 40/2018)

Rättslig kommentar angående 16 f § tillfälliga lagen - SR 41/2018 ("nya gymnasielagen")
(Legal comment regarding article 16 f in the temporary act, concerning permits for the sole reason of studies on "gymnasium" level - SR 41/2018)

 Rättsligt ställningstagande angående kraven på klarlagd identitet och pass i ärenden om uppehållstillstånd - SR 20/2019
(Legal position concerning requirements for established identity and passports in cases concerning residence permits - SR 20/2019)

Rättsligt ställningstagande angående "välgrundade utsikter" till permanent uppehållstillstånd i 6 § tillfälliga lagen - SR 21/2019
(Legal position regarding "well-grounded prospects" to obtain permanent residence, in artikel 6 in the temporary act - SR 21/2019)

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