November 29, 2022
by Christopher Cowan
M.T. and Others v. Sweden concerned the complete suspension of family reunification in Sweden between July 2016 and July 2019 for individuals granted subsidiary-protection status (like the applicants), in contrast to individuals granted refugee status. In a six-one ruling the Court held that there had been no violation of Article 8 in conjunction with Article 14 of the European Convention on Human Rights (the Convention). This blogpost critiques the reasoning of the majority, who deferred to the margin of appreciation of the Contracting State in deploying random temporal criteria to control migration and permit differential treatment. The lack of an individual assessment of the applicants situation based exclusively on the facts of the case at hand raises concerns around the applicants’ practical enjoyment of the right to private and family life under Article 8 of the Convention.
During the 2015 European migrant crisis, the total number of asylum seekers in the EU spiked to 1.3 million with Sweden receiving 163,000 applications for protection. In response to this rise, the Swedish government amended the Aliens Act with a Temporary Act that remained in force from the 20 July 2016 until the 19 July 2019. The Temporary Act adjusted the validity of residence permits to the minimum level provided by the Recast Qualification Directive (Council Directive 2004/83/EC – later repealed and replaced by Directive 2011/95/EU) and adjusted the possible grounds for family reunification to the minimum level provided by the Family Reunification Directive (Council Directive 2003/86/EC of 22 September 2003). Essentially, the right to family reunification for refugees was limited to the nuclear family and the right to family reunification for persons benefitting from subsidiary protection was suspended during the period from 20 July 2016 until 19 July 2019 (para 28).
The case was brought by three applicants. The first applicant (the mother) and the third applicant (the son) live in Syria. The second applicant (the son/brother) lives in Stockholm, Sweden. The second applicant had been granted subsidiary protection status in Sweden. The first and third were refused residence permits, which they had submitted on the basis of their family connection (the second applicant) in Sweden. At the time, the aforementioned Temporary Act was in force. The applicants submitted that this suspension breached Article 8 of the Convention, and that the difference in treatment between those granted refugee status and those granted subsidiary protection status constituted a breach of Article 14 of the Convention (para 1).
In 2016, the second applicant travelled with family members to Germany and then on to Sweden. At the time, he was a minor (aged 15), and the Swedish Migration Agency carried out an assessment of his best interests as a child. The Migration Agency reviewed his case on 31 October 2016. He stated that he had family connections in Sweden (two brothers and a cousin). Further, he submitted that he left Syria due to the security situation and was unable to continue his studies there. On 4 November 2016, the second applicant was granted a temporary residence permit in Sweden due to the prevailing security situation in Syria. As a person eligible for subsidiary protection, the temporary residence permit was valid for thirteen months. On 27 October 2017 his residence permit was prolonged by two years under the Temporary Act.
On 17 February 2017, the first and third applicants appeared before the Swedish Embassy in Khartoum to apply for residence permits in Sweden, citing family ties with the second applicant. The third applicant also submitted that he wanted to seek medical care for an eye injury, and be reunited with his other brothers in Sweden. On 24 August 2017, the Migration Agency dismissed their applications. It stated that under the Aliens Act, a residence permit could be granted to an alien who was a parent of an unmarried alien child if that child was a refugee (Chapter 5, Section 3(4)). However, under Section 7 of the Temporary Act, that provision no longer applied if the person had been granted a temporary residence permit under Section 5 of the Temporary Act and had applied for a residence permit after 24 November 2015.
The applicants appealed the decision to the Migration Court. They submitted that the second applicant, who was 17 years old at this time, needed his mother to support him in Sweden. The appeal was refused under the same grounds as had previously been given by the Migration Agency. The applicants launched an application to the Migration Court of Appeal, relying on Article 8 in conjunction with Article 14 of the Convention. Their application was dismissed on 22 November 2017.
In their analysis of the case, the majority focused on three considerations. Firstly, whether the random temporal criteria used by the Migration Agency in temporarily restricting the applicants’ interest in family reunification was contrary to the right to family life protected under Article 8 of the Convention. Secondly, the State’s margin of appreciation in assessing the applicants’ interest in family reunification alongside the State’s interest in exercising control over migration policy to protect the economic well-being of the community considering the record increase in asylum applications. Finally, whether the applicant had experienced differential treatment despite potentially being in a similar situation to those with refugee status, which would violate the non-discrimination protections of Article 14 of the Convention.
The majority made note of a recent case (M.A. v. Denmark) in which the Court reasoned that the refusal to grant family reunification to a long-term married couple owing to a three-year waiting period entailed a violation of Article 8 of the Convention due to the disruption of essential marital cohabitation which constituted the essence of married life. In the case at hand, M.T. and Others vs Sweden, although the applicant was a minor (sixteen years old at the time of application), he had managed on his own in Sweden, where he had been studying and living with his brothers. The majority concluded that the suspension of family reunification had not disrupted essential cohabitation. Further, the Court noted the temporal restriction was not arbitrary; on the contrary, individual assessments were still carried out regarding the best interests of the child in other instances. In support of this, the Government highlighted a case in which parents and siblings were granted family reunification with their eight-year-old son/brother, who had been granted subsidiary protection in Sweden (para 83). The majority concluded that there was no reason to question the waiting period pertaining to the suspension of family reunification and no indication that the Temporary Act did not allow for an individual assessment of the interests of family unity, or that such an assessment was not carried out in this case (para 84).
In the majority’s reasoning, there is a focus on the need to balance the applicants’ right to a family life under Article 8 of the Convention with the margin of appreciation afforded to the State in ensuring the well-being of the community in regulating migration and controlling public expenditure (para 59). The Court found the State struck a fair balance between the applicants’ interests in being reunited in Sweden and, the interest of the community as a whole in protecting the economic well-being of the country by regulating immigration and controlling public expenditure (para 84).
Regarding Article 14 of the Convention and the prohibition of discrimination, the majority did not question the distinction made by the Swedish legislature in respect of persons granted protection owing to an individualised threat (those qualifying for refugee status), and persons granted protection owing to a generalised threat (those qualifying for subsidiary protection). They noted factual and legal arguments to contend that a person fleeing a general security situation in their country of origin is not in the same situation as someone fleeing an individualised threat of persecution (para 105). The Court noted a lack of consensus at the national, international, and European levels as to whether or not, in respect of family reunification, it was necessary or appropriate to place persons who had been granted subsidiary protection on an equal footing with refugees (para 115).
Judge Ktistakis made a notable dissent in this case, disagreeing with the fundamentals of the majority’s reasoning on the above points. Firstly, he argued that the Temporary Act, which suspended the right to family reunification for beneficiaries of subsidiary protection, while leaving this right intact for other relevant groups, amounted to differential treatment and discrimination under Article 14 of the Convention. Furthermore, he was critical of the Migration Agency, which applied a brief and standard format in its reasoning, rather than conducting an individual assessment of the case. He observed that simply failing to assess the interests of family unity when considering individual circumstances amounts to a violation of the State’s positive obligations under Article 8 of the Convention (para 3). In addition, Judge Ktistakis observed that, while States have a wide margin of appreciation in relation to migration policy, this cannot be framed in generalised terms based around an arbitrary calculation about the number of asylum seekers acceptable in Sweden. Rather, the Court’s assessment should examine whether the Temporary Act hampered access to family reunification for those receiving subsidiary protection. He noted that the Temporary Act exclusively affected the right to family reunification of Syrians, who made up the vast majority of those receiving subsidiary protection, with the refusal of family reunification being based on abstract decision-making – something which does not comply with Convention standards.
The dissent highlights the flaws in the Court’s reasoning and forms the basis for this critique. There is a notable divergence from recent caselaw in accepting the random temporal criteria in asylum assessments (see: M.T. v. Denmark). The majority repeatedly referred to the spike in asylum claims in 2015, notably for individuals from Syria, with 163,000 applications in Sweden for protection. Consequently, they affirmed the State’s wide margin of appreciation in controlling migration and preserving the economic well-being of the country. It is not disputed that the State enjoys a wide margin of appreciation in migration policy; however, the express use of general criteria by the Migration Agency in rejecting the applicants’ appeal for family reunification is striking and poses fundamental questions about the role of the Convention in politically contentious areas such as this one. In this case, the State balanced economic well-being and the need to control migration with the influx of those seeking protection (a political issue) rather than the need to protect the right to family life under Article 8 of the Convention (a legal issue). Crucially, this leads to a permitted generalised assessment based on a need to restrict the number of migrants entering the country (as outlined in Judge Ktistakis dissent) which replaces consideration of the individual assessment of the applicants’ interests in family reunification under Article 8 of the Convention. This is apparent in the Migration Agency’s refusal to grant family reunification, which hinges entirely on the fact the second applicant submitted his application after 24 November 2015 and had been granted a temporary residence permit instead of refugee status.
In his dissent, Judge Ktistakis noted that the majority assumed the Migration Agency did in fact consider the individual circumstances of this case, despite there being no actual indication that such an assessment took place. Indeed, there is a question to be asked about the precise circumstances of this case, and how the unknown can be assumed, particularly within the framework of the Temporary Act which aims to control the number of migrants coming to Sweden. Previously, the Court had determined that where the reasoning of a domestic decision is insufficient and fails to balance the interests at stake, that would be contrary to the requirements of Article 8 of the Convention (see: El Ghatet v. Switzerland). This case marks a notable departure in favour of States controlling migration as a national political consideration which allows the sweeping use of random temporal criteria rather than requiring individual assessment to comply with Convention standards.
It is interesting to note that the differences in the Swedish legal framework pre-November 2015 and post-November 2015 correspond to a shift in the national political and legal landscape in the State aimed at controlling migration – as occurred in many Contracting States around that time. Previously in the Court’s case law it was well-established that risk of a violation of the right to family life or ill-treatment and persecution in the country of origin must be assessed according to the individual facts which are known to the Contracting State (see: Khasanov and Rakhmanov v. Russia; F.G. v. Sweden; El Ghatet v. Switzerland). Strikingly, the use of generalised assessments and temporal criteria regarding family reunification was not considered a key issue for the majority in this case. The majority’s failure to assess the individual circumstances diverges from earlier caselaw and leads to questions about the future role of the Convention in migration cases. Is there a growing willingness in the Court to accept sweeping criteria that de facto exclude certain groups from the protection of Article 14 in conjunction with Article 8 of the Convention? Where does it leave the rights of those seeking protection if the Court defers to the national political and legal landscape in balancing the interests of the community and economic well-being alongside national migration policy? Whether the Court is more willing to defer to the State in migration policy as a trump card over Convention rights is a question that will be answered in future jurisprudence.
In M.T. and Others v. Sweden, the margin of appreciation is interpreted to allow States to assess competing interests between the community and the number of asylum seekers granted protection. In permitting this narrative of competing interests, the Court seemingly accepts the use of random temporal criteria at the expense of individual assessments relating to family reunification. There is no indication of an assessment of the impact on the applicant’s family life by the Migration Agency – this is assumed within reasoning that solely applies general and random temporal criteria. Indeed, if the applicant had applied for protection before 24 November 2015, he would have received refugee status and the right to family reunification would have been guaranteed by the Court. M.T. and Others v. Sweden marks a notable divergence from the Courts interpretation of established principles, however it remains to be seen if this reasoning will be the standard for the Courts future jurisprudence. In this instance, subsidiary protection status has left the applicant with a subsidiary right to family life.