The introduction of Migration Courts in Sweden - a shift of power in the asylum process

Sammanfattning: In 2006 a reform of the Swedish asylum process took place. The former system had been the object of strong criticism, and especially the appellate body, the Aliens Appeals Board, had become a symbol of an arbitrary, and at the same time restrictive asylum policy. In the reform the Aliens Appeals Board was replaced with three Migration Courts and one Migration Court of Appeal. The outspoken aim was to increase the transparency and make the process to a higher degree governed by the rule of law. There was also a need to increase the public’s and the applicant’s trust in the process.
The thesis examines the reform, focusing on why the decision making in the asylum cases was transferred from an administrative body into the courts, and what consequences such a transfer brings with it. A concept used in the doctrine to describe the increasing power of courts and other judicial bodies is ‘judicialisation’. Since the concept contains a number of interesting questions regarding power and responsibility, the author uses it to discuss the reform of the Swedish asylum process.
The thesis is divided into four parts, followed by a conclusion. In the first part, the international legal framework of the asylum process is described. The second part examines the reform and the law-making process that preceded the decision to change the system. It is shown that there was a strong political will of changing the system into a court procedure, but that the legal experts who were asked of their opinion were sceptical to the reform. In the third part the political reactions to the results of the new asylum process are examined, mainly by a review of private members’ bills submitted since the reform. They show that most actors generally seem pleased with the introduction of Migration Courts. However, a debate on different aspects of the asylum policies has continued. The fourth part of the thesis is devoted to the concepts of power division and judicialisation. C Neal Tate’s description of conditions that facilitates judicialisation is compared to the reform of the asylum process in Sweden.
In the conclusion it is argued that the reform in Sweden is an example of juducialisation. It is also argued that this judicialisation at least partly can be seen as a wilful delegation of power in order to escape responsibility over a politically sensitive area. The author sees a risk that moving the asylum cases into the courts will leave the Government and the Parliament with the false notion that they do not any longer have the responsibility over the asylum policies. Also, it is likely that the critique of the decisions on asylum will follow the asylum cases into the courts. In the long run, the Migration Courts risk getting the same problems of credibility that the Aliens Appeals Board ones had.