When Sweden's new citizenship law came into force on June 6th, appeals against rejected applications soon began piling up in the post box at the Migration Court in Malmö.
Rather than process them individually, however, the court chose one as a test case, with its chief judge Fredrik Löndahl sitting on the panel alongside a senior judge and three lay judges.
In an interview with The Local, Löndahl explained why the court gave this case unusual attention – and why he believes its ruling could ultimately be tested by Sweden's highest migration court.
"This is something we can do in the Swedish legal system, when, for example, there are issues involving new legislation," Löndahl told The Local in an interview. "This case raised issues related to the EU law, and also, of course, the big issue of whether the now available law or the old law should be applied. So there were some big issues that needed great attention."
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On September 10th, three months after the appeal had been lodged with the support of Fair Transition, a citizenship campaign group, the court ruled that the appeal should be rejected, taking the unusual decision of publishing the ruling in a press release along with a redacted copy of the decision.
"The administrative court does not issue press releases very often, but it occasionally happens, and the reason why we did it in this case was because we were aware of the big general interest. Many people are affected by this, there are many appeals regarding this issue, and it has also been discussed a lot within the court."
The Fair Transition legal team based its appeal on three arguments, one based on national law, one on EU law, and another arguing that there were shortcomings in the way the Migration Agency handled the case.
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Could the new law apply to old applications?
The first and most important question under Swedish law was whether the stricter citizenship requirements could be applied to applications submitted before the law changed.
The lawyers supporting the appeal argued that doing so breached the principles of "legitimate expectations" and "equality before the law".
This argument was partly based on previous Swedish cases in which courts had overruled legislation where the parliament had failed to introduce adequate transitional arrangements. In this case, they argued, long waiting times at the Migration Agency meant many applicants could have had no way of knowing when they applied that their application might end up being judged according to different rules.
This, they argued, was "contrary to the principles of legitimate expectations", and also contrary to "equality before the law", because another person with identical circumstances to the applicant could have applied at exactly the same time and been accepted simply because they had an efficient case officer.
Löndahl, however, said the cases cited as precedents were different because in each of them the courts had concluded that parliament had not intended the unfair consequences.
In this case, parliament had deliberately decided not to introduce transitional rules, despite being aware of the likely consequences.
"For us as a court to not apply the Swedish law, there have to be very big errors," he said. "Could the parliament have made a mistake by not including transitional rules? Obviously, in this case it could not have done so because this question was very much debated. So it was the intention of the majority not to have such rules."
"In the other cases, they have always looked for the intention of the lawmaking body, which sometimes is not very clear. However, in this case there was a very clear intention."
He also dismissed the controversy over the parliamentary vote on transitional rules. A measure proposing that such rules be added to the bill was only defeated because the Sweden Democrats broke the parliament's pairing agreement, which is intended to handle sick and absent MPs, and sent two MPs to vote it had agreed to hold back.
As the pairing system is simply "an agreement between the parties", Löndahl said, what the Sweden Democrats had done was not against the law. "It is still a majority decision by the parliament."
He acknowledged, however, that the Migration Agency's long processing times were "very disturbing".
How does EU law affect citizenship?
The second argument was more complicated.
The Fair Transition legal team argued that citizenship law is under the domain of EU law, citing several decisions from the EU court to back up this case, including a case against Malta over its programme of giving citizenship to investors.
Löndahl said the Malmö court accepted that EU law had a bearing.
"If you are a citizen of a member state in the European Union, you are also a citizen of the European Union, so EU law is relevant," he said. But he said the EU cases cited by the appeal all covered different aspects of citizenship.
"In the cases that have been presented to the EU Court, they are very clear that when you get a citizenship, the rules for that are for national law to decide."
The cases cited by Fair Transition, he said, had concerned the withdrawal of citizenship or circumstances such as Malta's citizenship-by-investment programme.
"This is another situation. This is back to the Swedish law," he said. "And our opinion is that the EU law does not affect these issues."
However, unlike the question of transitional arrangements, Löndahl said that this was an area where it was possible that a higher court might come to a different conclusion.
"It is an area where you can have different opinions. Absolutely, yes," he said.
What about the Migration Agency's handling of applications?
In their third argument, the Fair Transition team argued that because the law on citizenship has changed, the Migration Agency should have contacted the appellant asking whether they had any additional information to provide which would provide reasons why their application should not be rejected, even if they do not meet the residency requirements.
Löndahl rejected this argument on the grounds that there was no additional information that appellant could have provided that would have altered the outcome as the new law does not give the Migration Agency any discretion to grant citizenship to anyone who does not meet the new residency requirement.
"Even if you had some special considerations, they would not help because if you haven't had eight years in Sweden, there's no possibility for dispensation."
Other judges are not bound
Although the Malmö court chose this as a pilot case, its ruling, Löndahl stressed, does not formally bind other judges dealing with citizenship appeals.
Judges in both Malmö and Gothenburg remain free to reach their own conclusions and it is also likely that the Migration Court of Appeal in Stockholm will grant leave to appeal, taking the case to the highest level.
"If we do this in one pilot case, the other judges can either follow our opinion or they can do otherwise, but they don't have to repeat all the arguments," Löndahl said.
"I believe our ruling is correct, but you never know until it is done and you have the result from the Migration Court of Appeal," he said. "The last word has not yet been said and there is still a possibility that there will be a change."
Time for changes to migration law
While most of the interview was about the citizenship appeal, The Local also asked Löndahl for his thoughts on the Social Democrats' plan to launch a government inquiry to take an overview of migration legislation and propose necessary reforms, and also on the way that a Request to Conclude, even when granted, does not seem to speed up processing of citizenship cases at the Migration Agency.
On Requests to Conclude, which can be requested under Swedish law whenever a government authority takes more than six months to make a decision, Löndahl said the situation was a serious issue.
He welcomed, however, the Social Democrats' proposal to launch an overview inquiry.
"This is something the migration courts have been complaining about for more than 10 years," he said. "Migration law is an area where political bodies change the law very often, and it's very difficult for us to know which law should apply in one case and which law should apply in another, so we would welcome a clearer picture."
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