How do I get a public counsel? What happens if my asylum application is refused? Can RFSL get me a visa? Below we have gathered facts and some of the most commonly asked questions about the asylum process.
Getting a public counsel
Most asylum seekers have the right to a so called public counsel to represent them in the asylum-seeking process at the Migration Agency, and, if the application is refused, in an appeal to the Migration Court and the Migration Court of Appeal. The Migration Agency can decide not to appoint a public counsel if it’s deemed “obviously unnecessary”, as in so-called Dublin cases. It’s a common misconception that the public counsels are employed by the Migration Agency or that they are the Migration Agency’s own lawyers, but a public counsel is most often a legal practitioner or lawyer listed as public counsel at the Migration Agency. The counsel is compensated by the state.
The asylum seeker has the right to ask for a specific counsel (for example Aino Gröndahl at RFSL), and the Migration Agency often asks the asylum seeker if they have any special requests. Asking for a particular counsel should be done as early as possible in the asylum process, as it is very difficult to change your counsel at a later stage in the process. The name and contact information of the preferred counsel should be given to the Migration Agency (for example to the case worker who registers the asylum application) or be communicated during the introductory brief interview held at Migration Agency. The Migration Agency will contact the counsel that has been requested to see if they (for example Aino Gröndahl) can take on the case and set a date for an asylum investigation interview.
If the asylum seeker doesn’t request a specific counsel, the Migration Agency will appoint a public counsel willing to take on the case, and who will be present on the date of the asylum investigation. If the asylum seeker is unhappy with their counsel, they can make a written request to change counsels. There are no formal requirements for such a request, but the asylum seeker’s name and case number should be stated, as should the nature of the request (change of counsel). It’s important to state the reasons for wanting to change counsels. It may be that the counsel hasn’t met with the applicant before the asylum investigation to prepare for the interview at the Migration Agency, something that unfortunately is very common. It may also be that the counsel clearly lacks LGBTQI competency, that the asylum seeker has tried to contact the counsel and the counsel fails to respond or that the counsel neglects to hand in the asylum seeker’s documents to the Migration Agency. It is also a good idea if the asylum seeker communicates why they prefer a certain counsel, for example that they have been in contact with RFSL that has a lawyer that is specialised in LGBTQI asylum cases and has agreed to take on the case.
The Migration Agency should ask what language/s the interviews should be held in at the beginning of the process. The asylum seeker has the right to choose the gender of the interpreter, but it is the case worker who ultimately decides what language should be used in the interviews. It is, for example, possible to ask the case worker (through the public counsel) for an interview in English instead of Luganda, but it is the case worker who assesses if the asylum seeker’s English skills are “sufficient” to carry out an interview in English or if the interview should be made in another language, for example the asylum seeker’s native language. However, it’s important to remember that the asylum seeker always has the right to stop an on-going interview if they feel that the communication with/through the interpreter isn’t working. Should the interpreter express themselves in a homophobic or trans phobic way, deliberately or unknowingly misinterpret or are unable to master LGBTQI relevant terminology etc., the asylum seeker should inform their case worker at the Migration Agency or their public counsel. A new date for the asylum investigation will then be set.
Statement/certificate from RFSL
In an asylum case, it may be helpful to attach a statement/certificate from RFSL to the plea that the public counsel submits. There is no template or formal requirement for such a statement/certificate. It varies depending on who issues it and in what capacity they are testifying. The statement/certificate should include the asylum seeker’s name, personal identity number, case number (LMA), date and information about who is testifying and their contact information. An email address is generally enough if you don’t want to share your telephone number. The Migration Agency normally doesn’t contact the person who issues a statement/certificate from RFSL.
The statement/certificate should be as detailed as possible. It’s good to verify that the asylum seeker is a member of RFSL by submitting a copy of their membership card, and to write what activities they are participating in (Newcomers, Pride, other LGBTQ events). If the person who writes the statement/certificate has talked to the asylum seeker about the asylum seeker’s personal situation (for example why the asylum seeker has sought refuge in Sweden) this is valuable information that should be included in the statement/certificate. However, the contents of the statement/certificate cannot contradict what surfaces in the plea from the public counsel or what the asylum seeker relates during the investigation at the Migration Agency. It is up to the public counsel to double check, and it’s a good idea to be in touch with the public counsel regarding the statement/certificate.
After a refusal – enforcement cases
The Migration Agency is Sweden’s primary authority in asylum cases. Should an application for asylum be refused, the decision can be appealed in the Migration Court. The appeal should be made within three weeks of the first refusal. If you are not satisfied with the Migration Court’s ruling, you can appeal to the Migration Court of Appeal within three weeks of the date when you were notified about the ruling. In order for the Migration Court of Appeal to try your case, leave to appeal is required. Leave to appeal is seldom granted; it has only happened once in an LGBTQI case. Leave to appeal is only granted when it is “important for the guidance of the application of law” (precedent cases) or if there are “exceptional reasons” to try the appeal (extraordinary circumstances).
If the Migration Court of Appeal doesn’t grant leave to appeal the case is closed and the process of carrying out the decision of deporting the asylum seeker is initiated. The asylum seeker is informed about the decision and is called to a so-called return conversation to settle whether they will return voluntarily.
Most lawyers and law firms consider their work as public counsel to be over when a case has reached the Migration Court of Appeal and it hasn’t granted leave to appeal. At this stage, the asylum seeker no longer has the right to a public counsel, and a public counsel no longer has the right to be compensated by the state.
At this point it’s possible to submit an application about impediments to enforcement of the deportation because of “new circumstances”. These circumstances need to be more than just minor adjustments or additions to information that has already been considered by the Migration Agency and/or the Migration Court; instead, they need to be new circumstances that have never before been tried in the case. An example of such a circumstance would be that a person hasn’t been able to/dared to disclose their LGBTQI identity to the migration authorities at an earlier stage, whereby this identity hasn’t been tried as grounds for asylum in that case.
Another example of new circumstances is media attention. It’s important to bear in mind that the publication must have been reasonably spread in order for it to be of legal significance, i.e. contribute to an increased risk of threat in the asylum seekers country of origin. It’s difficult to claim that there’s an increased risk of threat if the asylum seeker’s name and/or picture isn’t revealed in the article, since the publication then cannot be linked to the asylum seeker personally. It’s also important to remember that there are never any guarantees that some media attention is enough to constitute as a new circumstance. It’s always up to the asylum seeker to decide if they want to take the risk of being published in the media.
Changed conditions in the country of origin can also count as a new circumstance, for example if the situation for LGBTQI people has deteriorated because of new legislation, or if there are reports of an increase in attacks against people suspected to be LGBTQI. If the asylum seeker receives new threats by email, text message and/or social media such as Facebook, this could be cited as a new circumstance. It’s important to save all messages containing threats by taking screen shots.
There is no time limit for submitting an application for impediment for enforcement. However, in order to increase your chances of being successful, the application should be submitted as soon as possible, as soon as the new circumstance has surfaced. The asylum seeker must have a “valid reason” for waiting to disclose a new circumstance. Not daring to speak about one’s LGBTQI identity should not affect the credibility of the information. An application of impediment for enforcement can lead to rejection, residence permit or a new trial.
The period of limitation for asylum cases is four years from the first refusal from the Migration Agency. That means that if an asylum seeker has stayed hidden for four years from the date when the decision of refusal was made, they can seek asylum again.
According to the Dublin regulation, the “first country principle” applies to all EU asylum cases. That means that if the asylum seeker has applied for asylum in another EU country before coming to Sweden and seeking asylum here, Sweden will try to transfer the asylum seeker to the first EU country they visited. The same rule applies if the asylum seeker has entered the Schengen area with a visa from another EU country, even if the asylum seeker hasn’t visited the country. Sweden makes a request to the country in question, and if the country accepts to take on the responsibility of trying the asylum case, Sweden will transfer the person to that country. If the country doesn’t accept to try the asylum case, the responsibility falls on Sweden and the person’s asylum application will be tried by the Swedish Migration Agency.
A decision of transfer according to the Dublin regulation is time barred six months after the other country accepted to receive the asylum seeker and try their application, if Sweden during those six months hasn’t successfully carried out the transfer. If Sweden has failed to carry out the transfer because the asylum seeker is in hiding, the limitation period increases to 18 months. After 18 months Sweden is obliged to try the asylum case.
Decisions of transfer according to the Dublin regulation can also cease to apply when a person has been deported after a refusal and has left the Schengen area, for example traveled back to their country of origin. If the person has left the Schengen area voluntarily and stays outside the area for at least three months after the Dublin decision was made, it also ceases to apply. It can, however, be hard to prove that someone has been outside the Schengen area and for how long.
Can RFSL secure a visa for asylum seekers?
RFSL as an organisation doesn’t have the ability to help people outside Sweden get a visa or finance a trip for someone who wants to seek asylum in Sweden. We can, however, however give advice and stay in contact with people who are outside Sweden and intend to seek asylum here. If someone manages to get to Sweden – with or without a visa – RFSL can assist them with legal aid and representation, should they want to seek asylum.
Telephone: +4673-509 17 27