ML, who was not authorised to stay in Sweden, was arrested by the police for illegal stay in Sweden, and was detained on 9 November 2022 under Chapter 10, Section 1, second paragraph, point 2, of the Aliens Act (2005:716), under the so-called ‘probability detention’. A few days later, ML applied for asylum and the Police Authority handed the case to the Migration Agency, which considered that the detention should be maintained.

By decision of 18 November 2022, the Migration Agency decided to reject ML’s application as manifestly unfounded with immediate enforcement on the basis of Chapter 8, Section 19 of the Aliens Act and to keep him in detention as it considered that there was a risk that he will abscond.

The applicant appealed and the Migration Court allowed the appeal holding that the detention was ordered on the wrong legal basis. It later also dismissed the appeal against the refusal of the request for international protection. The Migration Agency appealed against this judgment before the Migration Court of Appeal.

The Migration Court of Appeal held that a person who is subject to an immediately enforceable expulsion decision pursuant to Chapter 8, Section 19 of the Aliens Act may be detained in accordance with the provisions on so-called ‘probability detention’ while the decision rejecting his or her asylum application can be appealed, if the conditions for detention are otherwise met.

The court noted that since at the time of the Migration Agency detention decision, ML had not appealed against the decision of expulsion with immediate enforcement, that decision could be enforced under Chapter 12, Section 8a, second paragraph of the Aliens Act. However, the court further highlighted that Swedish provisions on when removal decisions can be enforced must be interpreted and applied in such a way that they are compatible with EU law. It referred to the CJEU case law of Gnandi, in which it was held that all the legal effects of a return decision on an asylum seeker be terminated as long as the person has the right to remain, which includes the period of appeal for the decision rejecting the asylum application and the period until the appeal has been examined, even if the application was rejected as manifestly unfounded.

The Migration Court of Appeal therefore considered that a decision to reject an asylum applicant may be enforced only after the appeal period for the decision rejecting the asylum application has expired and, if this decision is appealed, when the individual’s right to stay has been finally decided by the Migration Court.

The court also noted that in this case, the decision to hold ML in detention was taken during the appeal period for the decision rejecting his asylum application, when there was no decision to remove that could be enforced, which meant that it was correct for the Migration Agency to examine whether he could be detained in accordance with the provisions on probability detention.

As regards the grounds for holding ML in detention, the Migration Court of Appeal considered that there was a risk that he would abscond, stay away or otherwise impede the execution of a removal order and there were also serious reasons for continued detention.

The Migration Court of Appeal considered that there were reasonable grounds to believe that ML applied for international protection solely in order to delay or impede the enforcement of a return decision, so that the conditions for detention under Article 8(3)(d) of the Reception Directive were fulfilled.

Thus, the Migration Agency’s decision to hold ML in detention in accordance with the provisions on probability detention was considered to be correct and it was wrong for the Migration Court to overturn this decision.