Rättssäkerhet och säkerhetshot - En empirisk utredning av rättssäkerheten i ärenden där en utlänning ansetts utgöra ett hot mot rikets säkerhet

Sammanfattning: Since the major migration flows reached Sweden in the summer of 2015, have once again the immigration legal questions become the subject of public debate. As a result, a report showed that the Swedish Migration Agency handled asylum applications in a flawed manner. The flaws have mostly referred to the issues of the rule of law. In addition to this, a further aspect has also received attention and it is the one about national security. With the increased amount of immigration matters there was also an increase in so called security cases. Against this background and with a focus on the legal certainty in the process the purpose of this paper, on one hand have been to investigate witch legal rights an individual who will have their case handled as a security matter have and, secondly, if the rule of law had been affected by the sudden increase in case volume. To achieve the latter purpose of the investigation, empirical material has been studied. Finally, the purpose was to investigate whether there are tendencies in international, European Union law or national practice that suggests a changed view in relation to security risks, which in turn can affect national law enforcement. The review has shown that with EU law requirements for an effective remedy and the right to justice, security cases was transferred to the usual instance of procedure that previously belonged to the Government's competence. Legislative history in the previous regulation had described the courts role in a detailed way. In the new regulation, however there were no such descriptions. With the security police determine who poses a security risk during the initiation of a case was now the question of whether the Court should review this information. With background of EU case law and legal source material it was established that courts should take a controlling part of the classification, reviewing all case facts, much like how it was in the former system. In the question of which procedural guarantees the individual was granted, it was found that there were restrictions in party insight, this was also the case in relation to the individual’s public counsel. In comparison with the underlying EU directive, which had higher demands in regards of the public counsels right to transparency, there was a lack of conformity. The review showed that the legislature had disposed of the issue of giving the public counsel transparency to the investigating authority or the Court. It was thus unclear whether the public counsel in actual meaning was given access to the confidential material, and if the individual thereby fulfilled an effective opportunity of defence. The result of the empirical study shows that the court in most cases verify the information witch led the individual deemed to pose a security risk. On the issue of party insight, the court has in the majority of cases given the individual transparency of the material. The shortcomings that have been made has exclusively been attributable to the period just after security matters was transferred to the usual instance of procedure. Thus, the legal certainty of the individual seems to be fulfilled, both in relation to the EU directive, but even despite the largest migration flows in modern Swedish history. Some fear does however remain for a possible lowering of the threshold of what constitutes a security matter in view of recent EU case-law. It remains to be seen how this develops.