FM applied for asylum in Sweden arguing that he risked persecution if returned to Somalia, because he was deaf, he was kidnapped and forcibly recruited by Al-Shabaab, that he was subjected to torture and forced to wear a bomb belt with the aim of becoming a suicide bomber.
The Swedish Migration Agency rejected his application. In the decision, the Migration Agency stated that the applicant was deaf and that there were certain communication difficulties, which the public adviser pointed out. The Migration Agency considered that the information in the investigation was so contradictory and deficient that it could not be explained solely by the communication difficulties. The Migration Agency further found that the applicant’s deafness was not a risk of persecution. It further noted that the security situation at his place of residence did not warrant protection.
In the Migration Court, the applicant claimed that he had several serious disabilities for which an investigation was underway, requested the hearing of his sister about the fact that he suffered from multiple disabilities, partly about the fact that his sign language is a sign language he created himself that only his father and sister understand. The Migration Court rejected the request for an oral hearing and gave him the opportunity to complete his case in writing.
The Migration Court in Stockholm agreed with the Migration Agency’s assessment that there were reliability gaps in the information provided by the applicant. The migration court found that there was no medical certificate to support that, in addition to deafness, he had multiple disabilities such as memory disorders or an intellectual disability. Furthermore, the migration court found that in his previous applications there was incorrect information and information that differed from the information in the current application. An oral hearing was not considered necessary and the migration court considered that he could not be granted a residence permit.
The applicant appealed claiming that throughout the investigation, the interpreters had problems understanding him and despite repeated claims by his public counsel during the asylum investigation, the Swedish Migration Agency and the Migration Court have ignored his multiple and intellectual disabilities.
The Migration Court of Appeal in Stockholm granted leave to appeal and considered that the main question raised was whether the migration court has investigated the case as its nature requires. It noted that the investigative responsibility of the courts is regulated in Section 8 of the Administrative Procedure Act (1971:291) and that the court has greater investigative responsibility in a case concerning an application for asylum than in other cases.
The court noted that in addition to the applicant’s public counsel, two deaf interpreters and two sign interpreters were present at the asylum investigation before the Migration Agency. From the notes from the investigation, it appeared that he had difficulties understanding the questions that were asked or that he was imitating the interpreters.
The Migration Court of Appeal highlighted that the migration court has not considered whether the incoherent and contradictory information may have been due to the applicant’s communication difficulties. In addition, the results of the investigation into the applicant’s disability, which was underway during the proceedings before the migration court, could have significance for the assessments of the need for protection.
The Migration Court of Appeal considered that the migration court did not investigate the case adequately and that the proceedings were affected by serious flaws. The judgment was annulled and the case sent back to the migration court for new proceedings.