EXPLAINED: Sweden's inquiry on taking asylum rules to EU minimum

What is the background? 

In the run-up to the 2022 election, the far-right Sweden Democrats published a document called Sweden's Future Migration Policy, which spelled out in detail what laws needed to be changed to make Sweden's asylum rules as strict as possible under EU law. 

Then after the election in the Tidö Agreement the Moderates, Christian Democrats and Liberal Parties then agreed – as part of the price of Sweden Democrat support – that the future government would launch an inquiry into how to make this proposal a reality. 

"Through an exploration of Swedish law in relation to EU law, an inquiry will make proposals for legal changes and other measures which will have the effect of limiting as much as is legally possible the rights of asylum seekers," the passage in the agreement reads. 

What is the inquiry and who has been appointed to lead it? 

In Sweden, the first concrete step towards making a new law is to appoint someone, often but not always a judge, to lead an inquiry into the issue. The inquiry typically runs for at least a year, investigating the issue thoroughly before recommending whatever changes to the law are necessary. 

The government has appointed Josephine Boswell, a judge at the administrative court in Stockholm, to lead this inquiry.

Boswell last year spent a year as a Sweden Democrat-appointed civil servant. Between last November and August this year, she was one of the six civil servants the party appointed to its Samordningskansli, or "coordination council", inside the Swedish government offices. 

These civil servants, led by Gustav Gellerbrant, the former Moderate who is seen as one of the leading architects of the Tidö Agreement, are responsible for ensuring that the government fulfills the promises it made. 

That such a trusted Sweden Democrat operative has been appointed to lead the inquiry perhaps reflects a suspicion within the party that the government parties would use the inquiry stage to water down their proposals. 

What is the inquiry being asked to do? 

The inquiry is being asked to do three main things: 

• present an overview of the rules regarding the granting of asylum and the procedure for examining an asylum application, with the aim of developing a set of regulations that do not go beyond the minimum required under EU law
• take a position on how the possibility of receiving permanent residency can be abolished for certain foreigners 
• investigate under what circumstances permanent residency which has already been awarded to certain foreigners can be changed, take a position on how such a process could be formed, and propose necessary exceptions 

It is then asked to make proposals on the required changes to the law to make these three things happen. 

What might be involved in reaching the EU minimum? 

In the directive to the inquiry it says that the "starting point" of Sweden's new asylum system would be that protection for those fleeing a conflict or crisis should be: 

• temporary 
• only for those fleeing from countries in the regions around Sweden
• followed by either full Swedish citizenship or a return to the person's home country

Sweden should not "be more generous in any way in its approach to asylum or the international protection than what follows from its duties under EU law or other juridically binding international rules which Sweden has agreed to follow", the directive reads. 

According to the directive, no one has yet drawn up a "comprehensive overview" of how Sweden's asylum regulations relate to the minimum level allowed under EU law, so that is what Boswell is asked to do. 

Whenever she or her team discover any aspect of Swedish asylum laws that are more generous than the EU or international minimum, she is asked to suggest changes to the law which would put an end to this generosity. 

What examples of changes does the directive suggest? 

Removing refugee status or "subsidiary protection". Boswell is asked to look at how to remove refugee status if the situation changes in refugee's home country, and when and how it would then be possible to recall residency permits granted to those who have their status recalled.

This is already the case in Denmark, leading to many Syrians in recent years having their residency permits withdrawn.  

Shift burden of evidence to prove identity. The inquiry is asked to look at how to change the burden of evidence in the asylum process to make it so that those applying for asylum are required to prove their identity, and to suggest what the legal consequences could be under EU and international law if they cannot.    

Bring in shorter residency for subsidiary protection. The EU's Qualification Directive on those eligible for so-called "subsidiary protection", but not full asylum only requires members states to grant residency for "at least a year". Under Swedish law it is 13 months. 

Accelerated rejection of "obviously groundless" applications. Under EU law, member states can bring in a system of rapid processing for asylum applications which are "obviously groundless". According to the directive, Sweden currently handles all applications with the same procedure, regardless. Boswell has been asked to look at what possibilities there are under EU law to class applications as "obviously groundless" and to then treat them with an accelerated procedure. 

Limit the right to an interpreter. Asylum seekers in Sweden currently have the right to have an interpreter supplied by the authorities even though under EU law this is only required if considered necessary for a fair legal process. Boswell is asked to look at how to reduce this right to the minimum allowed under EU law.