Officialprincipen i migrationsprocessen : Domstolens utredningsansvar
Sammanfattning: The dissertation analyses the court’s duty to investigate when adjudicating migration cases, particularly asylum cases. The duty is stipulated in Section 8 of the Administrative Court Procedure Act. The dissertation aims to clarify the meaning of the provision. The court shall ensure that a case is as well investigated as its nature requires. In doing so, the court needs to decide whether there are relevant circumstances and evidence beyond what the parties have presented. If so, the court must ex officio take the necessary investigative measures to ensure the case can be considered ready for a ruling.To determine whether an investigation is robust, the court must consider the parties’ claims in light of the substantive rules and decide what factual circumstances, are to be proven. In asylum cases, the court must apply the provisions of the Aliens Act to determine whether the asylum seeker should be granted a residence permit or be deported - two alternative legal consequences. According to the principle of non-refoulement, the court must decide whether the asylum seeker is at risk of being subjected to treatment that would serve as grounds for protection, if repatriated. Examination of the case is thus forward-looking, which is one of several factors that place special requirements on the court when assessing the robustness of the investigation. I argue that the Migration Court of Appeal pays insufficient attention to the dual legal consequences; residence permits are often emphasised rather than deportation, which places the state's responsibility to respect the principle of non-refoulement in the background.In its case law, the Migration Court of Appeal has identified a number of investigation deficiencies. A case analysis of some 40 rulings, in which the duty to investigate is addressed, shows inter alia that the Migration Court of Appeal adduces both legal facts and evidence ex officio, issues injunction to parties and, many times, overturns the appealed decision and remands the case to the lower court for further proceedings. Since explicit reference to Section 8 of the Administrative Court Procedure Act is occasionally lacking, it is somewhat difficult to adequately review precedent setting.
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