The Migration Board releases asylum seekers from detention - after a new law interpretation

Two judgments in the Migration Tribunal have led the Migration Board to rethink when it comes to keeping asylum seekers in custody.

The reason is that the Court has reinterpreted the EU Reception Directive - which limits the possibility of detention.

- It is about asylum cases where deportation decisions have not gained legal force. According to the Swedish Aliens Act, it is possible to detain a person if there is a risk of withholding. Now, the Migration Tribunal found that the withholding risk must be significantly more specific, says Fredrik Beijer, Chief Justice of the Migration Board.

By withholding risk is meant that it is considered that there is a risk that the person will stay away from making an expulsion or rejection difficult.

In a legal comment from last Friday, the Migration Board states that the new interpretation means that "there is in principle no basis for keeping asylum seekers in custody after a removal decision has been made". However, there are some exceptions. For example, if it is possible to prove that a person in custody "applies for asylum solely for the purpose of delaying or impeding the enforcement of a removal decision".

- We will not take any new ones into custody on the old grounds, says Fredrik Beijer.

The new interpretation of the EU Directive has immediate consequences. Since Friday, around 15 people have been released from detention in Sweden.

Although the EU directive is from 2013, it is only now that a new assessment is made.

- It's absolutely problematic. It may be that we have had people in custody where the assessment does not match this interpretation, says Fredrik Beijer.

Fredrik Beijer cannot comment on how many of these can be heard over the years.

Karin Gyllenring, lawyer and founder of the Asylum Office, feels that the Migration Supreme Court's new interpretation is welcome.

- Sweden has received international criticism for people being detained for very long periods, this makes a difference for people. Overall, I think the assessments regarding people who are locked up in detention are very arbitrary, she says.