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Stern, 2014 🔗

“Our Refugee Policy is Generous”: Reflections on the Importance of a State’s Self-Image

Year: 2014

Type of text: Vetenskaplig artikel

Published by:  Refugee Survey Quarterly. 33(1)

Language: English

Author: Rebecca Stern

Pages: 19

Available at: https://academic.oup.com/rsq/article-abstract/33/1/25/1570405?redirectedFrom=fulltext

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Short description of text 

The text looks at how Sweden has reacted to criticism in individual cases directed to the Government from international bodies. It is cases in European Court of Human Rights and Court of Justice of the European Union as well as Human Rights Committee (HRC) and the Committee Against Torture (CAT Committee).

Most important results

“reluctance of recognizing the possibility of the existence of systemic flaws” (abstract)

Refugee policy rests on legal, economic, political concerns, concerns characterized by a “moral tension that often exists between the rights of migrants and those of citizens – a key issue perhaps particularly in the context of asylum” (26)

“A balance thus needs to be struck between these different interests, and it is hardly a controversial observation that the politics of protection are seldom based solely on humanitarian grounds but also serve other purposes.” (26)

“Liberal democratic States tend to emphasise the importance of the principle of asylum, of humanitarianism, and the necessity of upholding respect for human rights and international refugee law. The number of rejected asylum applications, and the legal and practical barriers that are set up to prevent or minimise economic migration and family reunification, as well as the widespread use of detention, restrictions on human rights for migrants and defective asylum procedures in such countries, however, speaks a somewhat different language, a language indicating lack of respect in practice for the right to seek asylum and for the human rights of migrants generally.” (26)

“Sweden is a country often referred to as having one of the most generous refugee policies in Europe” (28)

“the unanimous adoption of the current Aliens Act of 2005, the most thorough reform of Swedish asylum procedures in decades. When it entered into effect in 2006 it was considered to represent a significant stride for the rule of law, transparency and predictability. Whether the procedure has lived up to expectation or become a vehicle for a stricter interpretation than that initially intended, has been a matter of debate since its inception.” (29)

“With the 2010 elections, however, the political landscape changed when the Sweden Democrats, a populist right-wing party with xenophobic and anti-Muslim views, gained seats in the Riksdag. In reaction to the election results, and as a way of ensuring that the Sweden Democrats would not gain similar influence on migration policy as the Dansk Folkeparti have had in neighbouring Denmark, a number of counter measures were introduced. The major political parties publicly declared that they would not cooperate with the newcomers on migration-related (or other) issues, and in March 2011 the Government (the ruling liberal/conservative coalition) and the Green Party presented an agreement on migration policy, explicitly aiming to bar xenophobic forces from influence.” (29-30)

“the approach of the Swedish judiciary to critique expressed in legally binding judgments [in European Court of Human Rights and Court of Justice of the European Union]  appear (at least formally) to be one of acceptance and adaptation, which is also what is required from the treaties” (31-32)

“Human Rights Committee (HRC) and the Committee Against Torture (CAT Committee) … not formally legally binding on States…” (32)

Sweden is the country that the CAT Committee found to have violated CAT Article 3 more times than any of the other countries that have ratified the treaty’s individual complaints procedure.” (32)

“On a more general note, the impact in Sweden of the views and concerns expressed by international courts and bodies varies. Jurisprudence is usually made available to the public through the Migration Board on-line information system and the concluding observations of the treaty-monitoring bodies and the State party reports are posted on a Government webpage. The Government does not actively draw the attention of the public to the existence of such statements and jurisprudence. Media coverage depends on the particular case and its newsworthiness and therefore such things are not reported as a matter of course. On occasion, non-governmental organizations (NGOs), human rights advocates and even high-level politicians voice concern over the fact that Sweden has in a considerable number of cases been found guilty by the CAT Committee, the HRC or the regional courts of infringing the principle of non-refoulement. It is, however, seldom that such a discussion leads to any reaction from the State other than its making assertions that errors can be made in individual cases, that the monitoring body or court in question, or other Swedish authorities, are accustomed to assessing facts differently, and that the Swedish system in general is functional and works in accordance with fundamental principles of law and human rights.” (34-35)

“The enthusiasm shown by migration courts or authorities to look to the views and decisions of the HRC or the CAT Committee for guidance in similar cases varies substantially, since it is often argued that the views/decisions are decisions in casu from which any general conclusions are difficult to derive. Reference is also made to the non-binding character of the views or decisions and hence their lower status compared with judgments by the ECtHR and the CJEU.” (35)

“The UNHCR Handbook for Determining Refugee Status and Guidelines on International Protection, together with “other conclusions concerning the procedure emanating from the UNHCR”, are according to the Migration Court of Appeal case law to be considered as sources of law in the context of determining refugee status. This is interesting in light of the fact that neither the Handbook nor the EXCOM Conclusions were originally intended by the UNHCR to be such. References to other UNHCR texts providing guidance for the interpretation of legal norms are, however, much less frequently referred to in decisions and judgments.” (36-37)

“UNHCR’s strongly-worded criticism of Sweden for continuing with forced returns of failed Iraqi asylum-seekers, a practice that has continued since 2008 against the recommendations of the UNHCR, Amnesty International, and the Council of Europe Human Rights Commissioner, as well as its being clearly against the expressed wishes of the Iraqi Government and parliament.76 In commenting on that criticism, Minister of Migration Billström merely referred to the individual assessment of asylum claims and added that he saw no reason for the agreement with Iraq not to be upheld.77 A second example relates to the 2008 letter sent by UNHCR to the Migration Court of Appeal appealing to the court to change its case law on Afghanistan because of the dangerous situation prevailing there.78 At the time, Sweden was one of the few countries that did not follow the guidelines of UNHCR on this point. A third example is that of the 2011 UNHCR report analysing the quality of Swedish asylum decision-making in which the UNHCR criticised the Migration Board on a number of procedural and material matters.” (37)

“The attitude appears to be one of pick and choose” → in relation to what in terms of soft law that is applied within the Swedish system (non-binding views and judgements) (39)

“not treating them [individual cases deemed wrong by international bodies] as indications of problems on a systemic level but rather as individual mishaps or, alternatively, as measures whose purpose has been misinterpreted” (42)

“The consequences for any State, even more so for a number of States, making such an admission [that it is more humanist in theory than in practice] are difficult to predict because it could mean turning the whole migration policy agenda on its head. “ (43)

“An answer to the question posed above – does one change one’s self-image or one’s practice – thus would be to choose neither. Sticking one’s head in the sand might be the only option available in order to keep up appearances.” (43)

In conclusion, however, I would like to point to another aspect: how can an individual successfully complain about the policy and decisions of a country that apparently never really does anything wrong – or at least will not admit to it? From the individual’s point of view, this is a grave problem.” (43)

Theoretical perspective/framework

Mixed, but one is Gibney’s concept of ‘partialist approach’, meaning that the state is partial towards citizens rather than to strangers (opposite would be ‘impartialist approach’) (39) and another concept is “‘compassion fatigue’ or the less welcoming approach towards refugees by both public and States that surfaced in the early 1980s and prevails today” consisting of  “a crisis of refugee protection rooted in the economic decline of developed countries in combination with increasing numbers of refugees.” (40-41)

Method

The author looks at cases in European Court of Human Rights and Court of Justice of the European Union as well as Human Rights Committee (HRC) and the Committee Against Torture (CAT Committee) and Sweden’s responses.

Policy suggestions

“Perhaps the solution might best be found in an advanced regional or international system of human rights-monitoring that possesses the authority of not only recommending States to take certain measures, but also when necessary the power, will, and strength to enforce them.” (43)

Summarised by: Josefin Åström