S.N., an Afghan national, requested asylum in Sweden, together with the mother and sister. The Migration Agency rejected the request in 2018 and expelled them to Afghanistan, a decision which became final in 2020. A new examination was granted in 2022, rejected by the Migration Agency which held that the family members were not refugees or in need of subsidiary protection. On appeal, the Gothenburg Migration Court granted refugee protection to the mother and sister on the grounds of persecution based on gender. The same court rejected the appeal lodged by S.N. and held that the principle of family unity does not confer a separate right to refugee status. He was granted an alternative protection status declaration and a temporary residence permit for 13 months. S.N. appealed against the judgment of the Migration Court.

The Migration Court of Appeal rejected the appeal and considered that S.N. had not made it probable that he was at risk of persecution because of his relationship with his mother and sister or for other individual reasons.

The court noted that under Article 23 of the recast Qualification Directive, Member States are required to ensure that the family is held together and that the family members of the beneficiary of international protection who, for their own part, do not qualify for such protection, may apply for certain benefits, including residence permits. It further added that under Chapter 12, Section 18, first paragraph, point 3 of the Aliens Act, the Migration Agency may grant a residence permit if new circumstances arise, such as medical obstacles or other special reasons that would lead to the expulsion decision not being enforced. Such an examination may be initiated by the individual or by the Migration Agency of its own motion and the decision pursuant to the provision cannot be appealed.

The court highlighted that the principle of family unity does not confer a separate right to refugee status, when a new examination pursuant to Chapter 12, Section 19 of the Aliens Act has been granted, for a third country national who is a family member of a refugee but who has no such reasons of his own. Under this provision, the third country national has only the right to have his or her grounds for protection examined while other grounds of residence, such as affiliation or special or particularly distressing circumstances, cannot be examined in this process.

Thus, even in cases where a new examination has been granted, a third country national who does not have his or her own grounds for protection must not be granted a declaration of status on the basis of the principle of family unity. Instead, if such a situation arises in a migration court, the person must be referred to apply for a residence permit to the Migration Board pursuant to Chapter 12, Section 18 of the Aliens Act.