Introduction
From the examination of previously available Swedish studies dealing with refugee policy in a European Union perspective, let us turn to the analysis of refugee policy in Sweden and the European Union. First, the part analysis of Swedish refugee policy as manifested in the Swedish Aliens Act. Thereafter follows sections dealing with "Agreements in the European Union" and "Implications for Swedish refugee policy".
The present Aliens Act was passed by the Swedish Parliament 6 June 1989 and entered into force 1 July the same year. The proposition for the new Aliens Act was given in government bill 1988/89:86. It was recommended in committee report 1988/89:SfU19, and subsequently passed by the Parliament in its entirety.
Visa requirements
In the Aliens Act, a visa is defined as a "permission to enter and stay in Sweden for a certain limited period of time". More exactly,
A visa may be issued for up to three months' stay at a time [...] The issue of a visa may be restricted in other respects and may be subject to such conditions as may be necessary.
The period of validity may be restricted to one or a few days, or the visa may only be valid for transit through Sweden.
To be issued a visa, the person applying has to have means of subsistence and for his journey home. Clearly, the alien applicant must also be in possession of a valid travel document. Moreover, there must not be reason to suppose that he "may commit a criminal offence", "will engage in sabotage, espionage or illicit intelligence activities", or will violate the Aliens Act.
The basic rule is that all aliens "entering or staying in Sweden shall have a visa". Exempted by law are holders of residence permits and nationals of Denmark, Finland, Iceland or Norway. Other exceptions are prescribed by the Government.
According to the Swedish national police board, nationals of 87 countries were exempted from visa requirements in October 1993 . As the world nowadays "consists" of around 190 countries, this would mean that nationals of about 105 countries require visas to enter Sweden.
Right to asylum
The Aliens Act establishes that refugees, war resisters, and so called de facto refugees are entitled to asylum. In Chap. 3:1, it is stated that:
The term asylum as used in this Act refers to a residence permit awarded to an alien because 1. he is a refugee, 2. he is a war-resister [!], or 3. without being a refugee, he is unwilling to return to his country of origin on account of the political situation there and is able to plead very strong grounds in support for this.
A refugee is in Chap. 3:2 defined as an alien who
is outside the country of his nationality owing to well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
A stateless person who for the same reason is outside the country of his former habitual residence and who is unable or, owing to such fear, is unwilling to return to that country, shall also be deemed a refugee.
The Swedish refugee definition is consequently in accordance with the definition given in the Geneva Convention. An alien fulfilling the stipulated requirements may therefore be termed a convention refugee.
The referred persecution shall, according to government bill 1988/89:86, be threatening the alien's life or freedom or otherwise be of serious nature. A detention of shorter duration shall, however, only imply persecution if additional circumstances support this. Valid circumstances are, for example, if assault has occurred or if the detention is a part in a series of pestering.
Who is then a war resister? Sweden is, or at least was in 1989, the only country in Europe that by law ensures this category of aliens the right to asylum. In Chap. 3:3 we find a definition; a war resister is an alien who
has deserted a theatre of war or fled from his country of origin or needs to remain in Sweden in order to escape imminent war service.
More precisely, a war resister is an alien who has fled from military service taking place, or to be located, in a theatre of war, or left his country of origin on the ground that he is facing an obvious risk of being called up for military service taking place at a theatre of war.
A de facto refugee is an alien who fulfils the conditions in Chap. 3:1(3). However, according to government bill 1975/76:18, an exhaustive account of the grounds justifying asylum in this case cannot be offered. Instead a few examples of de facto refugees are given; 1. an alien who pleads grounds for refugee status that are not sufficiently strong, e.g. an alien who has not been exposed to persecution, but to pestering caused by arbitrariness from the (local) authorities. In many cases, the alien has repeatedly been exposed to interrogation by the police and without grounds been accused of unlawful political activities; 2. an alien who is not a war resister, i.e. he is not running the risk of being sent to a theatre of war, but who faces a high possibility of receiving punishment for his resistance; 3. an alien who refuses to do military service and therefore risks a "disproportionately" severe punishment.
Government bill 1988/89:86 refers to the above mentioned bill and then declares that Chap. 3:1(3) is applicable to aliens who
have not been, or are not at risk of being, exposed to persecution that is as serious that they should be regarded as convention refugees, but who nevertheless, owing to the political conditions in the country of origin, have been, or are at risk of being, exposed to pestering that is so severe that it is not reasonable to require that they should return there. [Chap. 3:1(3)] does not normally include [a person] who has been forced to leave his country owing to external aggression, occupation or civil war, or who risks being persecuted for reasons of sex or homosexuality.
It should be emphasized that, except for aliens matching example 2 above, consequently, persons fleeing war, occupation, or civil war, are not considered to be de facto refugees and thus, except for war resisters, are not entitled to asylum.
Aliens who are entitled to asylum are issued permanent residence permits . The right to asylum is, however, not absolute. According to the Aliens Act, asylum may be refused if
1. in view of what is known concerning the alien's previous activities or, out of consideration of national security, there are exceptional grounds for not granting asylum,
2. there are special grounds for not granting asylum in the case of an alien coming under Section 1(2) or (3) [i.e. war resisters and de facto refugees],
3. the alien has entered Sweden from Denmark, Finland, Iceland or Norway and can be returned to any of these countries in accordance with an agreement between Sweden and that country, unless it is obvious that he will not be granted a residence permit there,
4. the alien has otherwise, before coming to Sweden, stayed in a country other than his country of origin and, if returned there, will be protected from persecution or, as the case may be, from being sent to a theatre of war or to his country of origin and also from being sent to another country where he does not have corresponding protection, or
5. the alien has special links with another country and is protected there in the manner referred to in paragraph 4.
The Government may prescribe exceptions to subsection two, paragraph 4, in cases where the alien's links with Sweden are of such a kind that he should not be denied the opportunity of having his asylum application examined here.
The first clause of Paragraph 1 refers to circumstances that, according to the Geneva Convention, disqualifies a person from being a convention refugee, e.g. if the person, "has committed a crime against peace, a war crime, or a crime against humanity". Also included in this category of circumstances are "serious non-political crimes" committed before the alien entered Sweden. The second clause refers to a situation where, out of consideration for national security, it "appears to be impossible to grant asylum".
Paragraph 2 is only applicable to war resisters and de facto refugees. A special ground here is that "the circumstances are such that it is considered necessary to regulate immigration", i.e. it would cause "great strain" on society if the aliens affected were to be granted asylum. Asylum can also be denied if the alien is guilty of serious crimes, and he, subject to impediments to the enforcement of refusal of entry and expulsion, may be refused entry.
Paragraph 3 refers to provisions laid down in the Agreement of the Nordic Passport Union. By Article 10 in this agreement, the contracting parties undertake to take back aliens who, subject to the agreement, should have been refused entry at the external Nordic border and who, without the necessary permits, have entered another Nordic country . According to government bill 1988/89:86, this obligation also applies to asylum-seekers who have crossed an internal Nordic border.
Paragraph 4 establishes the so called principle of first host countries. The starting point here is that if the asylum-seeker has stayed in another country on his way to Sweden, he should have submitted his application for asylum to that country, if he would have been guaranteed sufficient protection there. The asylum-seeker should therefore "in principle" be sent back to that country - the first host country - if it can be "fully assured", on account of the country's legislation, international commitments, or known practice, that he there is protected against persecution or against being sent back to the country where he has been exposed to, or risks, persecution.
It should be added here that the provisions in the Aliens Act on impediments to the enforcement of refusal of entry and expulsion establish that an alien may not be sent to a country where he is "in danger of suffering capital or corporal punishment or of being subjected to torture". Furthermore, a war resister "may not be sent to a country where he risks being sent to a theatre-of-war".
The principle of first host countries is not applicable if the alien solely has passed through another country on his way to Sweden. Then the en route rule takes effect. Under this rule, temporary involuntary stops due to, e.g., hold-ups in traffic or serious illness, are accepted.
Paragraph 5, finally, refers to "special links". An alien "is not in need of protection in Sweden" if he has been granted (convention) refugee status in another country, or if he has a substantially stronger link to another country, e.g., by a previous prolonged residence in, or by marriage to a national of, that country, by already being in possession of a residence permit, or if it is obvious that he would be granted one there, or if the other members of his family have been accepted in that country.
Admission on humanitarian grounds
According to the Aliens Act, Chap. 2:4(2), "a residence permit may be issued to [...] an alien who, for humanitarian reasons, should be allowed to settle in Sweden". Aliens who "should not be denied residence permit" owing to, illness, or "other personal circumstances", are subject to this paragraph.
However, when discussing refugee policy, it is the so called humanitarian grounds relating to the political conditions in the country of origin, that should be examined. By practice, these "grounds related to asylum", apply to aliens who have fled their country of origin owing to war, occupation, or civil war. For instance, by a guiding decision in June 1993, the Government issued residence permits on humanitarian grounds to two persons who had fled from civil war in Bosnia-Hercegovina.
Like aliens entitled to asylum, aliens who are allowed to stay on humanitarian grounds are issued permanent residence permits . However, in a recent bill the Government proposes the following amendment to the Aliens Act:
If an alien who applies for residence permit in accordance with Chap. 2:4(2) or Chap. 3 is found to be in need of temporary protection [...], a fixed-term residence permit may be issued.
The new Chap. 2:4a is intended to apply to aliens who have fled from a short-lived "conflict or crisis", or a natural or ecological catastrophe, and who are not entitled to asylum. If a solution to the conflict etc. is not foreseeable in "the near future", a permanent residence permit should still be issued. As an example of such a conflict, the Government mentions the civil war in Bosnia-Hercegovina.
Sanctions on carriers
A carrier transporting an alien who is refused entry is obliged to provide for his return journey. In Chap. 8:6, it is, accordingly, stated that if an alien who has arrived in Sweden "on board a ship or aircraft" is refused entry,
he may be returned to the said ship or aircraft or put on board another ship or aircraft having the same owner or user (carrier). If it is necessary for supervisory personnel to accompany the alien, room is also to be made for them on board the ship or aircraft.
If the commander of the ship or aircraft refuses to receive the alien or the supervisory personnel, a contingent fine may be imposed on him by the police authority.
Moreover, subject to Chap. 9:2, "Financial liability of the carrier", the carrier transporting the alien refused entry, risks a direct monetary sanction:
It is the duty of the carrier to reimburse the State for the cost of the alien's journey from Sweden and for the travel expenses from Sweden and back again incurred on behalf of the supervisory personnel who need to accompany the alien.
Government bill 1988/89:86 states that the obligation to provide for the return journey and the financial liability shall apply if the carrier has had a "realistic chance" to check whether the aliens transported meet the conditions for entry and the carrier, nevertheless, has "neglected" to do so. Therefore, the above Sections are only applicable if the alien "is refused entry because he lacks a passport or the permits required for entering Sweden or the means for his journey home".
According to the Aliens Act, the carrier may be partly or wholly exempted from financial liability. Such an exemption may be made if the carrier can show that he had "reasonable cause" to assume that the alien was authorized to enter Sweden, i.e. if the alien held the necessary documents and money, or return ticket, when boarding the ship or aircraft. The carrier may also be exempted from financial liability if the monetary sanction is "manifestly oppressive", or if the carrier had "sound reasons" to assume that the alien enjoyed "refugee status". The implications of the latter terms are, however, not further specified.
The purpose of the above provisions is said to be to try to put a stop to aliens destroying their travel documents and tickets. In the Ministry for Foreign Affairs' report Gränskontroller och gränsformaliteter i ett EG/EU-medlemskapsperspektiv, it is laconically stated that the provisions aim at not assigning to the carrier any form of examination of applications for asylum.
Introduction
Refugee policy, immigration policy and rules governing the checks on entry at the external borders are by the Member States of the European Union declared as matters of common interest. As described in Chapter 1, before the Treaty on European Union became effective, the cooperation was of a pure interstate nature and its chief results the Dublin Convention and the External Frontiers Convention. However, neither of these two conventions has yet come into force. It should also be noticed that these conventions, and subsequent agreements, do not constitute a complete "Aliens Act of the European Union", but are documents providing for cooperation and harmonization of certain aspects of the above mentioned policies.
Visa requirements
In the External Frontiers Convention, an entry visa is defined as an "authorization or decision by a Member State to enable a person who is not a national of a Member State to enter its territory" .
In June 1993, nationals of 73 countries required visas for all Member States of the then European Community. How many nationalities require visas for at least one Member State then? This is unfortunately impossible to say since, contrary to Sweden, in some Member States, e.g. Portugal and Greece, the list of the nationalities who are subject to visa requirements is confidential. However, the number of countries on these lists seem to at least vary between about 80 and 150.
The External Frontiers Convention establishes a so called uniform visa, i.e. a visa valid in all Member States, issued in accordance with the following conditions: 1. the alien is in possession of a valid travel document, 2. he can present, "if necessary, documents justifying the purpose and conditions of the intended stay or transit", 3. he has "sufficient means of subsistence", including means for his return journey, and, 4. he does not, "represent a threat to the public policy, national security or international relations of Member States" or, appear on the so called joint list. This list will consist of aliens "to whom the Member States shall refuse entry to their territories" on the ground that they represent a threat to "public policy or national security".
A Member State may, however, "for humanitarian reasons or for reasons of national interest or because of other international commitments" issue a visa to an alien who does not fulfil all the above conditions. The visa is then only to be valid in the territory of that Member State.
An alien holding a residence permit, or, consequently, a uniform visa, issued by one Member State, does not need to obtain an entry visa for a short stay, i.e. a stay not exceeding three months, in another Member State. Visas for longer stays are, however, only valid in the Member State who issued the visa and shall be issued in accordance with the national laws of that Member State and after "consultation of the joint list".
By the External Frontiers Convention the Member States of the European Union "undertake to harmonize their visa policies progressively" and, as mentioned earlier, by the coming into force of the Treaty on European Union 1 November 1993, visa policy was brought under the competence of the European Union.
In the amended Treaty of Rome, paragraph 1 of Article 100c, it is accordingly stipulated that
the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, shall determine the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States.
The requirement of unanimity in the Council is, however, not absolute and in any case only temporary. In the second paragraph, it is stated that
in the event of an emergency situation in a third country posing a threat of a sudden inflow of nationals from that country into the Community, the Council, acting by a qualified majority on a recommendation from the Commission, may introduce, for a period not exceeding six months, a visa requirement for nationals from the country in question.
From 1 January 1996, the decisions on visa requirements shall always be adopted by a qualified majority. As might be noted, the European Parliament is excluded from the decision-making process in the case of "emergency".
Right to asylum
In the Dublin Convention an application for asylum is defined as
a request whereby an alien seeks from a Member State protection under the Geneva Convention by claiming refugee status within the meaning of Article 1 of the Geneva Convention, as amended by the New York Protocol.
Accordingly, only convention refugees are entitled to asylum. To recapitulate, the Geneva Convention defines a refugee as a person who
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
However, the Geneva Convention also states that a person shall not be regarded as a convention refugee if he has, "committed a crime against peace, a war crime, or a crime against humanity", "a serious non-political crime", or "been guilty of acts contrary to the purpose and principles of the United Nations".
In the 1991 Report on Immigration and Asylum, it is declared that when it comes to (convention) refugee policy,
priority would appear to go to preparing the implementation of the Dublin Convention and harmonizing the substantive rules of asylum law in order to ensure uniform interpretation of the Geneva Convention.
It is further stated that the "conditions for recognition of refugee status" should be "the same in all Member States". However, a "harmonized application of the definition of a refugee as given [...] in the Geneva Convention" is yet to come.
Back to the Dublin Convention. The Member States of the European Union affirm to "undertake to examine the application of any alien" who applies for asylum at the border or in their territory. Furthermore, an application shall be examined "by a single Member State [...] in accordance with its national laws and its international obligations".
The Member State responsible for the examination is to be determined in accordance with Articles 4 through 8 of the Convention. In order of appearance and subject to certain given exceptions, the following shall apply: A Member State is to be deemed responsible if the applicant, 1. has a family member, i.e. a spouse, an unmarried child under eighteen years, or the father or mother (if the applicant is unmarried and under eighteen years), who has previously been granted asylum by that Member State, 2. is in possession of a valid residence permit issued by that Member State, 3. is in possession of a valid visa issued by that Member State, 4. has entered the territory of the European Union "irregularly" via the external border of that Member State, or 5. has entered the territory of the European Union "legally" via the external border of that Member State. Where none of the these criteria are applicable, "the first Member State with which the application for asylum is lodged shall be responsible for examining it".
Even if a Member State is not responsible under the above criteria, it shall have "the right to examine an application for asylum" if submitted to it by the applicant. A Member State may also, for "humanitarian reasons, based in particular on family or cultural grounds", examine an application if requested by another Member State.
Moreover, according to the Dublin Convention, a Member State shall have the right, "pursuant to its national laws" and "in compliance with the provisions of the Geneva Convention", to send an applicant for asylum to a first host country. However, with reference to this provision in the Dublin Convention, the 1992 Resolution on a harmonized approach to questions concerning host third countries sets out to "harmonize the principles" under which it should be applied.
For a third state to be considered a potential first host country, all of the following conditions have to be fulfilled: 1. The "life or freedom" of the applicant must not, "on account of his race, religion, nationality, membership of a particular social group or political opinion", be threatened in the country concerned, 2. he must not be "exposed to torture or inhumane or degrading treatment", 3. he must previously have been "granted protection", or have had the opportunity to "seek [...] protection", or there has to be "clear evidence of his admissibility", and 4. he must be "afforded effective protection" against refoulement, i.e. against being sent to a country where his "life or freedom" is threatened as specified above.
The principle of first host countries "is to be applied to all applicants for asylum". If the stipulated conditions are fulfilled, i.e. a first host country is identified, the application for asylum "may not be examined and the applicant may be sent to that country". However, a Member State shall have the right, "for humanitarian reasons, not to remove the asylum applicant to a host third country".
Admission on humanitarian grounds
The External Frontiers Convention establishes that aliens who do not fulfil the conditions for entry into the European Union given in the Convention, may still be allowed to enter "the territory of the Member State concerned" if humanitarian grounds are at hand.
Concerning immigration, the Report on Immigration and Asylum establishes that one priority is "harmonization of admission policies" . When it comes to admission on humanitarian grounds, however, harmonization is considered "an uphill battle" as it is noted that "even at national level, few or no written rules exist". Still, a starting point for a definition is given; eligible to admission on humanitarian grounds are
persons who do not meet the other conditions for admission [e.g. family reunion] but who cannot be reasonably required to return to their country of origin given their individual situation.
When discussing admission on humanitarian grounds in connection with "Basic principles for the level of harmonization", the Report on Immigration and Asylum refers to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe. The said article establishes that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment". On this basis, the Report concludes that aliens who can expect this kind of "treatment in their country of origin [...] cannot be expelled".
Further hints on the substance of humanitarian grounds can be found in some other documents. In the preamble of the Resolution on manifestly unfounded applications for asylum from 1992, it is noted that a Member State "may, in accordance with national legislation, allow the exceptional stay of aliens for other compelling reasons outside the terms of the 1951 Geneva Convention".
According to the 1993 Draft Recommendation concerning checks on and expulsion of third country nationals residing or working without authorization, an alien whose application for asylum has been definitively rejected, "should be expelled, unless there are compelling reasons, normally of humanitarian nature, for allowing [him] to stay".
In regard to a specific category of refugees, persons fleeing civil war in the former Yugoslavia, the Resolution on certain common guidelines as regards the admission of particularly vulnerable groups of persons from the former Yugoslavia, dated June 1993, is applicable. In this resolution, the following declaration is made:
Member States [of the European Union], in compliance with their national procedures and laws, will take suitable measures for the admittance, within the limits of the possibilities of each Member State, of particularly vulnerable persons from the former Yugoslavia in order to afford them temporary protection.
However, these "particularly vulnerable persons" are to return "to an area in the former Yugoslavia" as soon as it is "possible to do so safely".
It should be added that, according to the European Commission, in its Communication from the Commission to the Council and the European Parliament on the right of asylum, a de facto refugee is a person who
flees his country not in order to escape political persecution - which implies that he or she cannot enjoy the protection guaranteed by the Geneva Convention - but because his or her life is threatened, say, by civil war and who, for this reason, cannot be sent back.
The Commission also describes the de facto refugee as an alien who is refused (convention) refugee status, but cannot be sent back to his country of origin because "his physical integrity would thereby be endangered".
As prescribed in the aforementioned Resolution (on refugees from the former Yugoslavia), the protection afforded is to be temporary.
The European Commission recommends harmonization of "the rules on de facto refugees" since "the question whether they can be allowed to stay [...] should not depend crucially on the place where their application is examined".
Sanctions on carriers
By the External Frontiers Convention, the Member States of the European Union undertake to "incorporate into their national legislation" rules requiring carriers to
take all the necessary measures to ensure that persons who are not nationals of Member States coming from third countries are in possession of valid travel documents and of the necessary visas, and to impose appropriate sanctions on carriers failing to fulfil this obligation;
Furthermore, "where required by the control authorities", the carrier shall be obliged to
assume responsibility without delay (this may include covering the costs of accommodation until departure), and to return [...] a person who is not a national of a Member State coming from a third country and who is refused admission at the first control on entry into Community territories.
Carriers are in the quoted article defined as "airlines and shipping companies" and "public service international carriers transporting groups overland by coach".
The incorporation of rules requiring carriers, to ensure that passengers are in possession of valid travel documents and visas, and to provide for their return journey in case of refusal of entry, is said to be "without prejudice" to the provisions of the Geneva Convention.
Introduction
Before continuing by analysing the implications for Swedish refugee policy, let us look at a summary of the previous sections: [not included in the Internet edition]
Visa requirements
To recapitulate, nationals of 87 countries do not require visas to enter Sweden, i.e. nationals of about 105 countries are subject to visa requirements. In the European Union, nationals of 73 countries require visas for all Member States. As have been noted, since the necessary information is confidential, it is not possible to determine the number of nationalities who require visas for at least one Member State. The numbers for each Member State vary considerably, at least between 80 and 150.
It can thus be established that some Member States require visas for more nationalities than Sweden does, some less. Now, the Member States "undertake to harmonize their visa policies progressively" and the Council of the European Union "shall determine the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States". The question is then: Is the list of the European Union going to consist of 73 or 150 countries? Or some number in between?
By way of illustrating the problem, let us have a look at Denmark and Sweden. Nationals of Estonia and Lithuania require visas to enter Sweden. However, as they may enter Denmark - another member of the Nordic Passport Union - without being subject to visa requirements, they can, if they wish, go to Sweden without the required visas. To enter Sweden illegally in this way is of course a ground for expulsion, or in the terminology of the Swedish Aliens Act, "refusal of entry". Still, it is quite possible to do it. With this observation in mind, let us turn to the European Union.
If the list of the European Union, pending harmonization of the Member States' visa policies, is to consist of around 73 countries, the same scenario will apply. But on a much larger scale, since the divergence in visa policy is considerably greater in the European Union than in the Nordic Passport Union. A solution to the problem would be a downward harmonization with the visa policy pursued by the state with the longest negative list as its target. Downward implying "in a restrictive direction" for the aliens concerned. When this harmonization is complete, the common list would thus consist of approximately 150 countries or more. "Or more" added as it is quite possible that additional nationalities may be included on the lists of other Member States. Owing to the confidentiality, we cannot know.
Is the outlined solution in line with reality? This question remains to be answered and, hence, we are also waiting for an answer to our main question: What are the "implications for Swedish refugee policy"? I will return to the subject in Chapter 5. Now, to another interesting observation.
In government note 1992/93:157, it is, not surprisingly, pointed out that also the Nordic Passport Union "presupposes a harmonized visa policy". Consequently, Denmark is inside a European union whose Member States "undertake to harmonize their visa policies progressively", while at the same time being inside a Nordic union were the contracting parties "aim at applying visa requirements to the same extent". I will also return to this fact, and its implications, later.
For now, it may further be noticed that the said Government note mentions that a decision in 1992 to introduce visa requirements for nationals of Algeria, Morocco and Tunisia, was based on the fact that all of the Member States of the European Community, and Finland, Norway and Switzerland, already had taken this measure.
So then, to the conditions for the issuing of visas. As can be seen if we look back on the two previous sections, these conditions are similar in Sweden and the European Union (as manifested in the External Frontiers Convention). One major difference though, the prescribed consultation of the so called joint list constitutes an obligation which implies taking into consideration the interests of other countries when assessing if an alien is going to be issued a visa. Still, as also was noted, a Member State may "for humanitarian reasons or for reasons of national interest or because of other international commitments" issue a visa to an alien who does not fulfil all of the conditions stipulated in the External Frontiers Convention, including the condition that the alien may "not appear on the joint list".
It should be stressed here, however, that since visas, as the Swedish Aliens Act expresses it, only are issued for a "certain limited period of time", e.g. for tourism or business, our major interest when it comes to assessing "the implications for Swedish refugee policy", is not the above discussed conditions . It is the extent of the number of nationalities which are subject to visa requirements in the European Union, and which circumstances motivate the addition of a specific country to the list of countries whose nationals are subject to visa requirements. The first issue has already been discussed.
Concerning "which circumstances", the wording of the Treaty on European Union may be observed when it states that "in the event of an emergency situation in a third country posing a threat of a sudden inflow" of aliens, the Council "may introduce [...] a visa requirement". Visa requirements are thus, inter alia, going to be used to restrict the opportunities for aliens to seek protection. As was noted in Chapter 1, the same applies to the Swedish use of visa requirements. Accordingly, the Swedish visa policy seems in this respect to be in line with the cited stipulation in the Treaty on European Union.
Right to asylum
As could be observed, the Swedish definition of asylum diverges from the one employed by the European Union. The Swedish Aliens Act includes convention refugees, war resisters, and de facto refugees in its definition, while the Dublin Convention's concept of asylum only comprises convention refugees. It is thus evident that the present Swedish definition will have to be altered in favour for a more narrow one. Is it? Formally, yes, but does it also apply in practice? This question leads us into a discussion about the interpretation of the concept convention refugee.
In their Handbok i invandrarrätt (Handbook of Immigration Law), the Swedish lawyers Göran Melander and Peter Nobel touch upon the issue. They state that the incorporation in 1976 of the concept de facto refugee in the Swedish definition of asylum has led to a "more restrictive interpretation of the [Geneva] Convention's refugee definition". According to the same authors, a consequence of this formal widening of the right to asylum, is that the Swedish interpretation "appears to be restrictive" in comparison with the ones employed in other West European countries. Their conclusion is that "many of the persons" who are granted asylum as de facto refugees, "should [...] instead be accepted as convention refugees".
Still, inter alia refugees fleeing war do not fulfil the conditions in the Geneva Convention, and thus need to be referred to another category of aliens which may be afforded protection. According to Melander and Nobel these persons should be "accepted as de facto refugees". Consequently, this category would constitute a necessary extension of the right to asylum. As cited earlier, however, the Swedish de facto refugee paragraph "does not normally include [a person] who has been forced to leave his country owing to external aggression, occupation or civil war". Such refugees in need of protection are instead allowed to stay on humanitarian grounds and are thus not entitled to asylum, neither as convention refugees, nor as de facto refugees.
It should be added that in its bill 1983/84:144, the Swedish Government maintains that the existing extension of the asylum definition is necessary. This since the Government considers that even with a generous interpretation, all aliens allowed to stay as de facto refugees, would not fulfil the requirements necessary to be regarded as convention refugees.
That was the state of things in Sweden. What about the European Union? Since the interpretations applied by the Member States of the European Union have not yet been subject to harmonization, a "European Union interpretation" is not possible to give here and now. It can only be asserted that as made clear by the European Commission, "certain elements of the concept of refugee as defined by the [Geneva] Convention give rise to different, not to say divergent interpretations by the national authorities".
As an example of "divergent interpretations", involving Sweden and the Netherlands, the case of the Peruvian refugee Mónica Castillo Páez might be briefly looked into. According to the Swedish Immigration Board, she did not have sufficient reasons to be granted asylum as a convention refugee or a de facto refugee, nor to be admissible on humanitarian grounds. She was therefore refused entry. However, during an intermediate landing in the Netherlands on the way back to Peru, she managed to submit an application for asylum with the Dutch authorities. The Netherlands subsequently contacted the United Nations High Commissioner for Refugees, UNHCR, who ascertained that Mónica Castillo Páez was to be regarded a convention refugee. After further considerations she was also awarded this status by the Dutch authorities.
When it comes to Sweden's extension of the asylum concept by the inclusion of the term war resister, government bill 1988/89:86 might once again be quoted. It is said that war resisters "in certain cases may stay also in other countries", either as de facto refugees or on humanitarian grounds. The extent of the phrase "certain cases" is, however, not further specified.
What final conclusions can then be drawn about the "implications for Swedish refugee policy" regarding the definition of asylum? As concluded previously, Sweden is going to have to bring its definition in line with the one applied in the European Union. As shown, however, this does not necessarily imply that the Swedish concept of asylum in practice will have to be restricted (except for war resisters). The extent of the adjustment depends on the future common interpretation of convention refugee. Still, whatever the harmonized interpretation will look like, Sweden will eventually have to adapt its present interpretation to it.
It is also worth noting that an adjustment of the Swedish definition of asylum, in combination with a corresponding (equivalent) widening of the interpretation of convention refugee, would in fact extend the right to asylum for the aliens concerned. This since the right to asylum for de facto refugees is far from absolute. It is well to recall that aliens normally entitled to asylum as de facto refugees or war resisters, can be deprived their stipulated right if "the circumstances are such that it is considered necessary to regulate immigration". However, as pointed out, in a bill from 1984, the Government considered such a widening to be impossible.
Finally, it is nowhere mentioned in the examined documents of the European Union whether asylum is to imply permanent or only temporary protection. According to the Swedish government bill 1988/89:86, the granting of asylum should denote the issuing of a permanent residence permit.
Let us go on to the distribution of responsibility as prescribed in the Dublin Convention. On the one hand, an application for asylum shall be examined "by a single Member State" deemed responsible by the criteria given in the Convention. On the other hand, a Member State shall, even if it is not responsible, have "the right to examine an application for asylum" if submitted to it by the applicant.
Consequently, Sweden will retain the right to examine an application for asylum. However, as analysed in Olseke 1992, the possibility of granting asylum, or admission on humanitarian grounds, is a different story. Abolished internal borders, i.e. the actual basis of the discussed cooperation itself, lead, as should be evident, to a situation where aliens allowed to stay are able, legally or illegally, to move between the Member States (cf. visa requirements). Therefore, if Sweden as a Member State, pending the envisaged harmonization, would exploit this right and at the same time apply a more generous definition of asylum than the other Member States, the necessary mutual confidence within the European Union may be in danger. As established earlier, for this mutual confidence to be at hand, every single Member State requires influence on the actions of the other Member States.
In addition, as noted in Chapter 2, the Report on Immigration and Asylum explicitly states that the Dublin Convention "presupposes that Member States have confidence in each other's asylum policies" . The conclusion made is therefore that under the described circumstances, the prescribed right may only be applied "sparsely". In short, the possibility of granting asylum will be dependent on the refugee policies pursued by the other Member States.
From these ascertainments concerning the right to examine an application for asylum, let us turn to the principle of first host countries. As observed, this principle is already subject to harmonization.
The striking difference between the Swedish provisions and the corresponding provisions of the European Union, is that the former ones, in practice, imply application of the so called en route rule, while, subject to other stipulated conditions, the latter ones establish that an asylum applicant may be refused entry solely on the ground that there is "clear evidence" of his admissibility to the third country considered. Thus, notwithstanding that a refugee only has passed through a third country, with or without making temporary involuntary stops, the basic rule is to be that he may be sent to that country if he there is ensured sufficient protection.
In other respects, there does not seem to be any substantial dissimilarities between the provisions on the principle of first host countries applied in Sweden and the European Union, respectively. It might also be noted that the fundamental legal starting point of the provisions is the same; article 33 of the Geneva Convention, which prohibits refoulement. In addition, the Resolution on a harmonized approach to questions concerning host third countries implicitly refers to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, establishing that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Admission on humanitarian grounds
The observation in the Report on Immigration and Asylum that "few or no written rules exist" when it comes to admission on humanitarian grounds, also holds true for Sweden. The Aliens Act laconically states that "a residence permit may be issued" on humanitarian grounds. No further specifications are given by law.
The European Commission's example of a de facto refugee, a person who has fled from civil war, is, as mentioned earlier, subject to the Swedish humanitarian grounds relating to the political conditions in the country of origin, as defined in government bills. The Commission's definition of de facto refugee thus differs from the Swedish one implying right to asylum.
Throughout, the European Union seems to treat humanitarian grounds as a residual category - a category applicable to refugees who are not convention refugees, but who, nevertheless, cannot be refused entry owing to inter alia "other compelling reasons", e.g. they risk being "subjected to torture or to inhumane or degrading treatment or punishment" in their country of origin.
It must, however, as in the Swedish case, be distinguished between "purely" humanitarian grounds, e.g. illness, and humanitarian grounds as described above. Unfortunately, it is impossible to make a clear distinction on the basis of the examined documents. Persons who "cannot be reasonably required to return to their country of origin given their individual situation" applies, as far as I can understand, to both categories, similarly "compelling reasons". However, as noted above, the Commission's attempts to define de facto refugee, points primarily to the latter category.
What conclusions, if any, can then be made? Possibly this one: Until there exist more distinct common provisions on impediments to expulsion and refusal of entry, it is not feasible to more precisely define the "compelling reasons" necessary for allowing an alien admission on humanitarian grounds, i.e. on "purely" humanitarian grounds or, applicable to refugees, as de facto refugees. Still, although recommended by the Commission, the envisaged harmonization seems distant.
Another fact that can be established with some certainty is that admission on humanitarian grounds only is going to imply temporary protection in the European Union. In contrast, at least so far, Sweden has issued permanent residence permits to the category of aliens concerned. The difference is illustrated by the attitudes to refugees from the former Yugoslavia. As the Swedish Government does not view the civil war in Bosnia-Hercegovina as short-lived, refugees from that region will, even after the advocated amendment of the Aliens Act, be allowed to stay permanently. The European Union prescribes temporary protection - the refugees have to return to the former Yugoslavia as soon as it is "possible to do so safely".
Sanctions on carriers
The sanctions prescribed in the Aliens Act are confined to "financial liability" and an obligation to provide for the return of an alien refused entry. The provisions only implicitly oblige the carriers to check if a passenger is in possession of a valid passport and required visas, and have the means for the return journey, before permitting boarding.
The corresponding provisions of the European Union explicitly require the carriers to "ensure" that the passengers have "valid travel documents" and necessary visas. If a carrier fails to fulfil this obligation, it risks "appropriate sanctions". Consequently, even if no aliens transported are refused entry, the carrier is subject to sanctions if he does not comply with the prescribed obligation. In contrast, the Swedish "financial liability" only applies if an alien is refused entry.
Furthermore, the meaning of the term "appropriate" is not specified, but, as the European Commission notes, "some Member States impose heavy fines on airlines and shipping companies which carry aliens who are not in possession of the necessary entry documents". The Swedish Ministry of Foreign Affairs conclusion is, accordingly, that the European Union establishes "more far-reaching requirements" than the present Swedish ones.
The obligation to provide for the return journey applies both in the European Union and in Sweden. However, in addition, the Aliens Act's provisions extend the obligation by including "supervisory personnel", while the External Frontiers Convention obliges the carrier to cover "costs of accommodation until departure". It might also be noted that since it comprises "public service international carriers transporting groups overland by coach", the External Frontiers Convention's definition of carriers is more inclusive than the Swedish one.
Now, how do these provisions affect Swedish refugee policy? The External Frontiers Convention lays down that the incorporation of the prescribed rules are "without prejudice" to the provisions of the Geneva Convention. The Swedish Ministry of Foreign Affairs states that the provisions do not aim at assigning to the carrier any kind of examination of applications for asylum. Moreover, government bill 1988/89:86 establishes that if the carrier had "sound reasons" to assume that the alien refused entry enjoyed "refugee status", he should be exempted from financial liability.
However, as mentioned earlier, the European Commission recognises that the sanctions in fact "have repercussions" on the right to asylum. Moreover, the United Nations High Commissioner for Refugees, UNHCR, considers that the sanctions
helps to shift the burden of determining the need for protection to those whose motivation is to avoid monetary penalties on their corporate employer, rather than to provide protection to individuals.
In consistency with this observation, the UNHCR implicitly remarks that the sanctions "foreclose the chance to request protection to those in true need of it".
The following reasoning, to be found in inter alia Olseke 1992, support the opinions of the Commission and the UNHCR. To submit an application for asylum, the refugee must have the opportunity to reach the border of the country of asylum. If denied transportation, this opportunity does not exist. As the sanctions involve a possible financial strain on the carrier, a refugee who lacks sufficient documentation will be, or at least risks being, denied transportation. Consequently, he will not be able to submit an application for asylum.
The conclusion in Olseke 1992 is consequently "that the prescribed sanctions can prevent potential asylum-seekers from submitting applications for asylum. There is a risk that persons with well-founded claims for asylum, but without the necessary documents, are denied transportation". As observed in Chapter 2, Maravgi Staifo concluded similarly that the provisions on sanctions on carriers in the External Frontiers Convention would "make it more difficult" for asylum applicants to reach the European Union.
What can then be concluded here? Since the sanctions prescribed by the European Union are "more far-reaching", i.e. they apply even if no aliens transported are refused entry and may appear in the shape of "heavy fines", than the Swedish ones, the risk that asylum-seekers are denied transportation increases. The examined provisions therefore implies a more restrictive refugee policy - fewer refugees will get the opportunity to submit applications for asylum at the Swedish border or in the kingdom's territory.