Fridh, who has over the last year written responses to new immigration laws for the Swedish Bar Association, believes that even if the proposed law was not judged illegal by the Council on Legislation (which the government could ignore), it is almost certain to eventually be overturned by courts in Sweden or in Europe.
"The Swedish Bar Association had five reasons that would – each all by themselves – be enough to abolish the law," he tells The Local.
But he doesn't think it will ever get that far. "My reading of this law is that it is not something that the politicians themselves believe is reasonable."
"It is a way of making a statement that 'we are bold' and that 'we are ready to try anything'."
Despite this, Fridh is nonetheless concerned that those behind the proposal are willing to put the lives of so many people on the line.
"The inquiry says that there are 15,000 children who live with permanent residency in Sweden who will risk losing the right to stay in Sweden. That's a small city of children."
"They say, 'this is obviously not according to the best interests of the children, but it is worth it'. And I think that sums up the way they weigh people's rights against their wish to look bold. 'We are sacrificing 15,000 children's safety and well-being to look bold in a political discussion'."
Representatives of the Moderate Party he had spoken to, he said, had all sought to play down the proposal, which would see well over 100,000 foreign citizens in Sweden having their permanent residency revoked and well over 10,000 people deported, at the same time as causing an immigration disruption comparable in scale to the 2015 refugee crisis.
In addition to this, the three government parties only agreed with the Sweden Democrats to carry out an inquiry into the proposal, stopping short of pledging to actually enact it, which makes it even less likely the law could be passed ‒ although that could change depending on who wins the election in September.
"The Sweden Democrats have said something else, but it's clear that there is no majority for moving forward."
The inquiry – led by the judge and former Sweden Democrat official Josephine Boswell – called for a 'special law' to be passed which would automatically revoke permanent residency permits obtained by people who got their original permit on the basis of asylum, some other form of protection, or through Long Term Residency under EU law, and their relatives.
Fridh's three 'favourite reasons' why the law is illegal (plus a bonus reason)
1. No 'exceptional situation' to warrant retroactive legislation
Migration Minister Johan Forssell and other government figures have repeatedly said that the inquiry found that there were no obstacles to this law, either within the Swedish constitution or under international law.
Fridh questions this interpretation.
"I would say that the inquiry was a little bit more honest than that," he says. "They say this is not totally forbidden, but they specify a long list of obstacles that are reasons why that this has never been tried before. They are pretty open that this is something new and something that has previously been seen as not a good way of proceeding."
He agreed that under the Swedish constitution, the only absolute bar against changes that apply retroactively, such as this law, is in the fields of tax law or criminal law and that there is no such bar for changes that apply to administrative laws, such as those covering migration.
But the fact that there is no absolute bar on doing so does not mean that it is legal to change administrative law with retroactive effect in any situation whatsoever.
"In Swedish administrative law, in the Swedish constitution, and in the EU constitution, there is text saying that this should be done only in exceptional situations. So it's not impossible, but it should only be used in exceptional situations," he explains.
The inquiry, he points out, made no effort whatsoever to argue in its conclusions that there was any such exceptional situation or emergency in this case which made it necessary to take a measure as far-reaching as revoking the permanent residency permits of over 100,000 people.
"Of course, they have some kind of argument saying that there is criminality and social exclusion, but there's no argument that this is something that has exploded this year and that we have to do something about."
"There is not even a theoretical explanation as to why this [revoking permanent residency] would solve that problem," he added.
2. Clearly discriminatory
The second reason why the law as proposed would be illegal, he continues, is that it is clearly discriminatory, as many people would end up being deprived of permanent residency simply because of the way the Migration Agency opted to categorise their residency request.
A large number of those who risk losing their permanent residency actually got their permit on the grounds of work or self sufficiency, but just because they initially applied for asylum, they would still be affected by the new proposal. A large number will have applied for a work permit and asylum simultaneously, and will then be liable to lose their permit if the Migration Agency opted to give them residency on asylum grounds.
Finally, many people who have residency as a result of EU Long Term Residency will lose their permanent residency despite initially coming on a work permit.
"So it's totally random if you are affected or not by the new law. It's nothing to do with the person whether they are included or not and I believe that in both Swedish and European law, it is forbidden to have random reasons for laws where the state uses force against individuals. Where you take rights away from individuals you cannot be discriminatory, and you cannot be random," Fridh says.
3. Contravenes EU directive on Long Term Residency
The third of Fridh's reasons why he believes the law is illegal follows from the way people with permanent residency as a result of holding Long Term Residency will lose their permanent residency and return to simply holding Long Term Residency, a status under EU law that is renewed every five years.
According to Fridh, this amounts to Sweden revoking a permanent right obtained under EU law, something EU member states are simply not entitled to do.
"That is a directive that they have to use as written. We cannot change it. We cannot interpret it. And there is an article in that directive saying we can only revoke a permission if there are new reasons – if someone has lied, or if the facts are changed – and this is not the case here."
The inquiry conclusions acknowledge this, he says, but try to get around it by arguing that the Long Term Residency right is never revoked, only downgraded from permanent to five years.
But Fridh says there are several cases from EU court ruling out this interpretation.
4. Contravenes right to a private and family life under European Convention (in many cases)
As well as his three main reasons, Fridh is also confident that in many cases, revoking permanent residency permits would contravene Article 8 of the European Convention on Human Rights - the right to a family life. The inquiry admits as much in its conclusions, he notes.
"They say 'we acknowledge that many people would have the right to stay in Sweden according to Article 8, but we are leaving that up to the courts'," he says. "But it is not the courts that are bound by the European Convention, it is the Swedish state. And the Swedish government is not allowed to enact a law that they know would not be in accordance with the Convention. They have signed a treaty saying, 'we will try to follow the Convention'."
So if it's so illegal, can it be stopped?
The problem, of course, is that, regardless of how illegal the law would be if it were passed and enacted, it could take years to be blocked or overturned by Swedish or European courts, by which time it will already have caused massive disruption to tens of thousands of lives.
If the government were to push ahead and publish a bill, the Council of Legislation could declare it illegal under the Swedish constitution, but as the Council is purely advisory, the government could still push ahead and send it to parliament.
The European Commission has been alerted to the illegality of the law by Swedish MEPs representing the Left Party and could potentially report it to the EU Court for an opinion, but Fridh believes this is unlikely due to the political nature of the Commission.
"So the most likely route is that there would have to be an individual who claimed that this was against the EU constitution and a Swedish immigration court would then have to send a question to the EU Court."
"There have been a total of five cases where the courts in Sweden have sent such a question. But I believe that this is such an extreme situation that they would, or I hope they would, anyway."
Comments (1)