Report: Legal uncertainty for Afghan asylum seekers still high

On 7 October, the Swedish Agency for Public Management, Statskontoret, will present its review of legal certainty in the Migration Agency's asylum decisions. A more specific review of how Afghan refugees' asylum applications were assessed was published in August by the Swedish Network of Refugee Support Groups, FARR. 

In FARR's report, a group of legal experts has examined 182 of the Swedish Migration Agency's decisions in 2022 regarding Afghan citizens' asylum applications. Most of these concern young men who have been in Sweden for many years and have applied for asylum a second time. Their most important new grounds for asylum have been partly that they have left Islam, and partly that they have become so 'Westernized' that they cannot live in a country like Afghanistan - even less so now under the Taliban regime. The Migration Board has rejected the asylum grounds for the majority and given them deportation orders.

Those who have left Islam have either converted to Christianity or become atheists. According to the report, it is 'vanishingly few' who are deemed credible in their new belief. Both rapid and slow processes are considered to weaken credibility. 'Virtually no one' is assessed to be at risk of persecution because of the surrounding community suspecting or considering them to be kaffir, that is, an apostate from the true faith. Tattoos on the forearms, which must be washed before prayer in the mosque, are considered to be concealable or removable. The authors of the report argue that referring to the removal of tattoos should be regarded as a forced bodily intervention.

The Migration Agency does not question that Afghan asylum seekers who have been in Sweden for nine years have adapted to Western customs. However, since they lived in Afghanistan or Iran during their childhood and early youth, they are considered able to adapt to the ‘cultural customs and practices of their home country’. This means that the applicant must follow Sharia law and practice the strict version of Islam that is imposed in Afghanistan. In the Swedish Migration Agency's assessments, there is no discussion about this adaptation occurring under the threat of corporal punishment. The Migration Agency thus requires that those forced to leave Sweden should be prepared to adapt to values and social norms that Sweden condemns - at the risk of being subjected to persecution and corporal punishment if they violate these. Often, there is also no investigation into whether Westernization poses a risk of being perceived in a norm-breaking way in the home country.

Most asylum seekers belong to the Hazara ethnic group. Among others, France and Belgium take this into account in the assessment of asylum claims, due to the discrimination that the ethnic group faces in Afghanistan. According to the Swedish Migration Agency, Hazara affiliation is not considered a particular ground for protection.

The report’s authors criticize the Swedish Migration Agency for often setting aside second-hand information without investigating it, as it is considered to have 'low evidentiary value'. For people who have been outside their home country for a long time, it can be unreasonably difficult to demonstrate threats other than through second-hand information and speculation. Among other things, speculations that align with country-of-origin information should not be disregarded. 

The report’s authors see a clear connection between leaving Islam and becoming 'Westernized’ and call for these connections to be considered in the Swedish Migration Agency's protection assessments. In many of the reviewed decisions, no overall assessment is made at all, and there is no account of how the various risk factors have been assessed to affect each other. Sweden has previously been criticized by, among others, the UN Human Rights Committee precisely for not having conducted cumulative assessments correctly.

Finally, the report’s authors note that what should be assessed is the personal risk of persecution – not the evidence itself. Among other things, there is no assessment what persecution is risked by those who refuse to conform to the social norms in Taliban-controlled Afghanistan.

The authors of the report also comment that despite access to common country-of- origin information, EU countries choose to interpret the information differently, resulting in varying assessments of the group's protection status.

The EUAA's work to achieve a more uniform assessment of asylum applications within the Union does not seem to have been successful.

Read the report: Migrationsbeslut i ärenden rörande personer som söker skydd från Afghanistan – en kartläggning. FARR August, 2024.

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