10 - Foreign law in Swedish judicial decision-making: playing a limited role in refugee law cases

Summary

Introduction

Sweden has traditionally been, and has also considered itself to be, a country with a generous and humane policy on asylum and migration. The asylum system and the politics of asylum and migration are often debated, not least because of the large number of Iraqi asylum seekers that have arrived in Sweden in the past few years.

The asylum procedure was the subject of a major reform in 2005. The 2005 reform introduced a new system in which the appeals procedure was to be handled in the administrative court system by special Migration Courts and a Migration Court of Appeal. The first instance is the Migration Board. Important aims of the reform were to improve the opportunities to hold oral proceedings, to transform the asylum procedure into a ‘two-party process’ (similar but not identical to an adversarial process) and to enhance transparency. By taking these measures, it was hoped that the often-criticized asylum system would gain credibility among those involved in it, as well as among the general public. In the previous system, decisions at first instance were made by the Migration Board and, on appeal, by the Aliens Appeals Board, both of which were administrative authorities. The decision-makers at the Aliens Appeals Board, however, were judges specially appointed to adjudicate in refugee law cases. In certain circumstances either of the two authorities could refer cases to the government for the final decision.