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Sweden: Migration High Court Rules That Applying High School Act Does Not Violate Schengen

(Dec. 13, 2018) On September 25, 2018, the Swedish Migration Court of Appeals found that the newly enacted “High School Act,” which allows undocumented minors whose asylum application has been rejected to stay in the country to pursue a high school education, does not violate the Schengen rules requiring proof of identity. (Migrationsöverdomstolen [Migration Appeals Court], MIG 2018:17, case no. UM13063-18, Stockholm Chamber of Commerce website; Migrationsöverdomstolen, MIG 2018:18, case no. UM12649-18, Stockholm Chamber of Commerce website; Lag om ändring i lagen om tillfälliga begränsningar av möjligheten att få uppehållstillstånd i Sverige [Act on Amendments to the Temporary Limit on the Eligibility to Receive Residency Permits] (SFS 2018:756), Swedish Code of Statutes website.)

The Swedish Migration Court of Appeals is Sweden’s highest migration court, whose judgments cannot be appealed. It found in two decisions that the new Act, commonly referred to as Gymnasielagen (High School Act), may be applied. The Court heard appeals from three lower instances, the Migrationsverket (Swedish Migration Agency), and the Migrationsdomstolen (Migration Court).

The lower courts had found that the law was difficult to apply, not least the lowered identification requirements, and the migration court in Gothenburg sent its case to the European Court of Justice (ECJ) for a preliminary judgement on whether applying the law as written would violate EU law. Specifically, the Gothenburg Migration Court requested an expedited processing by the ECJ, but the ECJ responded that they would not expedite their findings. Thus at the time the Migration Court of Appeal rendered its judgment, a decision from the ECJ was not expected for some time. (Press Release, Administrative Court of Gothenburg, Migrationsdomstolen i Göteborg hämtar in ett förhandsavgörande från EU-domstolen om den s.k. gymnasielagens förenlighet med EU-rätten (July 31, 2018).) The Gothenburg Migration Court has since revoked its request for preliminary judgment. (Förvaltningsrätten i Göteborg [Administrative Court of Gothenburg], ECLI:EU:C:2018:894, case no. C-526/18, Infocuria website.)

Ruling of the Migration Appeals Court

The Migration Appeals Court specifically addressed the issue as to whether the provision in the temporary law on lowered evidentiary standards for proving one’s identity was lawful.

The Schengen rules together with the Codex on the Schengen boundaries oblige Sweden not to grant residency permits to persons who have not confirmed their identities. (The Schengen Acquis as Referred to in Article 1(2) of Council Decision 1999/435/EC of 20 May 1999, Sept. 22, 2000, 2000 O.J. (L 239) 1, EUR-Lex website; Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders (SCHENGEN BORDERS CODE) (codification), Mar. 23, 2016, 2016 O.J. (L 77) 1, EUR-Lex website.)

The Swedish Migration Court of Appeals determined that the Schengen rules on whom to admit to the country had no bearing on whom to give a residency permit to once the person was obviously already in the country. Referring to ECJ precedent, the Swedish Migration Court of Appeals found that

the provisions on entry and refusal of admission into the Member State country’s territories do not regulate the situation pertaining to a third-country national who is already present in the Member State for an indefinite period, when a decision to remove [the third-country national] because of [his or her] illegal presence is to be made. The ECJ has in addition expressed that it has already been established that only third-country citizens who wish to cross an outer border to travel into the Schengen Area are subject to refused entry on the basis of the Codex. (Migrationsöverdomstolen, MIG 2018:17, para. 3.1 (translation by author) (citation omitted).)

The Swedish Migration Court of Appeals referred to the precedent of the ECJ and found that the Codex does not apply to third-country Members who seek residency in that country, and that there is a legal “maneuvering space” (utrymme) for the Member States to approve residency for third-country citizens who are illegally present in their territories. The Migration Court found that the precedent was adequate and that the Union rules were sufficiently clear (acte éclairé), and thus a preliminary judgment from the EU court was not needed. (Id.)

Thus, the Swedish Migration Appeals Court found that accepting a lower standard of identity and granting temporary residency to two persons who could not prove their identity did not violate the Schengen rules. The Court found that it was enough that they had “established the likelihood” (göra sannolik) of their respective identities.

The Migration Court has previously held that for all other residency permits besides those based on refugee or protected status, a high bar for proving one’s identity should apply. (Migration Court of Appeals [MIG] 2011:1 (which is also the precedent the lower migration courts have followed in their respective verdicts).)

Criticism of the High School Act

The High School Act has been criticized by the Law Council for being unpredictable, and the Act is expected to give 9,000 unaccompanied minors who do not have grounds for asylum a right to stay in Sweden to complete high school. Once they have completed high school they would become eligible to apply for a work visa if they can find an employer sponsor. To meet the eligibility standards for employment the pay may not be lower than the national bargaining collective agreements and at no point lower than 15, 000 Swedish krona/month (about US$1,660/month). (Protokoll 2017-02-17 Kompletteringar av den tillfälliga lagen för uppehållstillstånd rörande studier på gymnasienivå [Minutes of Feb. 17, 2017, on the Topic of Temporary Residency Permits for High School Education], at 3–4, Law Council website; Proposition [Prop.] 2016/17:133 on Amendments to the Temporary Act on Residence Permits Regarding High School Education, Mar. 2, 2017, at 1, Government Offices of Sweden website (in Swedish); see also, Elin Hofverberg, Sweden: Parliament Votes to Grant Migrants Extended Residence Permits to Complete High School, GLOBAL LEGAL MONITOR (June 9, 2017).)