How do I get a public counsel? What happens if my asylum application is refused? Can RFSL help me get a visa? Here is information on some of the most commonly asked questions about the asylum process.
How to get a Public Counsel
Most asylum seekers have the right to legal aid, a so-called public counsel who represents them during the application process at the Swedish Migration Agency (Migrationsverket). If the outcome is a refusal, they also represent them at the appeal at the Migration Court and the Migration Court of Appeal. The Migration Agency can decide not to appoint a public counsel if it is considered “clearly unnecessary”, for example, in so-called Dublin Cases (see below). Counsels are not employed by the Migration Agency.
Asylum seekers have the right to request a specific public counsel (for example, Aino Gröndahl from RFSL), and the Migration Agency usually asks the asylum seeker if they have any special requests. This request should be made as early as possible, since it is very difficult to change public counsel later on. The name and contact information of the public counsel should be given to the Migration Agency, or be presented during the interview at the Receiving Unit. The Migration Agency contacts the requested public counsel and sets a date for the asylum commission interview.
How to Change an Already Appointed Public Counsel
If the asylum seeker does not request a specific counsel, the Migration Agency will appoint a public counsel who will be present at the asylum commission interview. If the asylum seeker is not happy with the counsel, it is possible to submit a written request to change counsel. The name and case number of the asylum seeker should be stated, as well as the issue of concern (in this case, an exchange of public counsel).
The asylum seeker should explain why a change of counsel is needed. It can be because the appointed counsel is behaving inappropriately, that they have not met with the applicant to prepare for the interview at the Migration Agency (which is unfortunately very common), or that the counsel lacks knowledge about LGBTQ issues. The problem can also be that the appointed counsel does not hand in the applicant’s documents to the Migration Agency, or that the asylum seeker cannot get in contact with their counsel. If the applicant wants a specific counsel, it is a good idea to state why they are more qualified, for example, that the asylum seeker has been in contact with RFSL and their asylum lawyer, who specialises in LGBTQ asylum cases, is familiar with the case and has agreed to represent the applicant.
Early on, the Migration Agency should ask the asylum seeker in what language(s) they prefer the interview to be conducted. It is important to remember that the asylum seeker always has the right to stop an interview if they perceive that the communication with/via the interpreter is not working. For example, if the interpreter expresses themselves in a homophobic and/or transphobic way, if the interpreter – intentionally or unintentionally – is translating incorrectly, or if there is a serious lack of knowledge of LGBTQ issues and terminology. The asylum seeker should let the Commissioner of the Migration Agency or the public counsel know, and make a new appointment for the interview.
Statement of Support/Testimonial from RFSL
In an asylum commission, it can be valuable to attach a testimonial from RFSL along with the documents that the public counsel hands in to the Migration Agency. At present, there is no specific template and no legal form to use when such a testimonial is written. It can vary depending on the person who has written it and the information that it contains. The statement of support should contain the applicant’s name, social security number, the case number (LMA), date, and information about who is providing the testimonial, as well as their contact information (an email address is usually sufficient if you do not want to include your telephone number). The Migration Agency usually does not contact the person who has written a testimonial.
It is a good idea to make the testimonial as detailed as possible and it should be clear that the asylum seeker is a member of RFSL (a copy of the membership card can be attached). It is also useful that it states if, and approximately how often, the person participates in RFSL activities (Newcomers, Pride, other LGBTQ events). If the person writing the RFSL testimonial has talked to the asylum seeker about personal circumstances, if they have reported information about reasons for leaving the origin country and how they are living in Sweden, it is a good idea to state this in the testimonial. It is important that the content of the testimonial does not contradict the information in the public counsel’s documents, or what the asylum seeker has told the Migration Agency at the commission. The public counsel has a right to see these documents, and it is a good idea to keep in contact with the counsel regarding the testimonial.
After Rejection – Enforcement Cases
The Migration Agency is the first legal authority in asylum cases. If the case is rejected, the decision can be appealed to the second authority, the Migration Court, and this should happen within three weeks after the first rejection. Even if the Migration Court rejects the case, it is possible to appeal the verdict to the Migration Court of Appeal, which is the highest legal authority in asylum cases. For the Migration Court of Appeal to even hear an appeal, a leave to appeal is needed. This is very difficult to get, and so far only one “LGBTQ case” has been granted a leave to appeal in Sweden.
To be granted a leave to appeal, the case must be a “precedent case” or have “extraordinary reasons” to appeal the refusal. If the Migration Court of Appeal does not grant a leave to appeal, the case is considered closed and the process of deporting the asylum seeker begins. The applicant will receive the decision and is summoned to a so-called returning dialogue, where they are asked if they are willingly intending to return to the country of origin.
Most lawyers and law firms consider the commission to be over when a case reaches the Migration Court and has not been granted a leave to appeal. At this stage, the asylum seeker does not have the legal right to a public counsel, and a counsel no longer has the right to receive a fee from the state. It is possible to submit an application of impediments to enforcement against the deportation, with regard to “new circumstances”, which are considered as an impediment to execution. “Minor corrections” or additions to the testimonial that has already been tried at the Migration Agency and/or the Migration Court are not enough. New circumstances, which have not been tried in the case, should be presented.
An example of new circumstance is if a person previously was not able to express their LGBTQ identity to the Migration Agency, and their identity has not been assessed as a reason to grant asylum. Another example of a new circumstance is media attention. It is important to be aware that the media reporting must have had considerable coverage for it to be regarded as creating a threatening situation in the country of origin. It is also difficult to argue that the threat risk is increased if the person’s name and/or picture does not appear in the reports. There are never any guarantees that media coverage is enough, so it is up to the asylum seeker to determine if they want to take the risk of their name and picture being published in the media.
Changes of circumstances in the country of origin can also constitute a new circumstance, for example, if the situation for LGBTQ people has worsened because of new legislation, or if there are reports citing increased attacks against people who are “suspected” of being LGBTQ. If the asylum seeker receives new threats via email, texts, and social media such as Facebook, they can be used to invoke new circumstances and it is important to save all threatening messages by taking screenshots, for example.
There is no time limit for sending in an application of impediments to enforcement, however, it should be handed in as soon as possible when the new circumstance arises. If the asylum seeker waits to disclose new circumstances, there must be a “valid reason”. Not daring to disclose your LGBTQ identity should not affect the credibility of the declaration. An application for impediments to enforcement can lead to rejection, residence permit, or a new trial. The period of limitation in asylum cases is four years, dating from the first decision of rejection by the Migration Agency. This means that if an asylum seeker successfully hides until four years have passed, they can seek asylum again.
According to the Dublin regulation, the “first country principle” is applied. This means that if the asylum seeker has been to another EU country to seek asylum before arriving in Sweden, the Swedish authorities will transfer them back to the first country they arrived in. This also applies if the person arrived in the Schengen area with a visa from another EU country, regardless of whether the person has been in that country or not. Sweden then sends an enquiry to the country in question, and if it accepts to take over the responsibility of assessing the asylum application, Sweden will transfer the person to that country. If the country does not accept the asylum case, the responsibility falls on Sweden and the Migration Agency will assess the case.
A decision about the transfer ceases to apply six months after the other country accepts to receive the asylum seeker and assess the case, or if Sweden has not succeeded in implementing the transfer during this period. If Sweden does not succeed in implementing the transfer, for example, if the asylum seeker is in hiding, the period of limitation changes to 18 months. After that, Sweden is responsible for assessing the asylum application.
A decision to transfer according to the Dublin regulation can also cease to apply if a person has been transferred after a rejection and therefore has left the Schengen area, for example, gone back to the country of origin. If the person has left the Schengen area voluntarily and is outside the area for at least three months after the Dublin decision was taken, then the decision also no longer applies. However, it can be difficult to prove if, or how long, someone has been outside the Schengen area.
Can RFSL Arrange Visas for Asylum Seekers?
As an organisation, RFSL cannot arrange visas or fund travel for someone who wants to come to Sweden to seek asylum. We can, of course, give advice and communicate with people who are outside Sweden, whose intentions are to seek asylum here. If a person successfully comes to Sweden, with or without a visa, then RFSL can offer legal help and representation.
Telephone: +46 (0)73 509 17 27