Är en lång handläggning av asylärendenförenlig med barnkonventionen? : En utredning av gällande rätt
Sammanfattning: The Child Right Perspective is constantly being debated and not least today when so many children are seeking asylum around the world. Many of these children has applied for asylum in Sweden and consequently been through a handling process. It is of the utmost importance that the Migration Authority takes the UN Convention on the rights of the child into consideration during the handling process and that the laws that are considered during the process are aligned with the principle the best interests of the child in article 3. The principle and the Convention on the rights of a child should be considered as two of the most important parts when handling asylum cases for children. This is to a large extent due to the fact, that children lack the legal capacity and can be assumed to be a particularly exposed group in society. Sweden has been criticized for having a handling process that is too long. Such long handling times are not in line with the Convention on the rights of the child. This thesis is aimed at investigating whether a long asylum process and the guidelines of the Migration Authority, consisting of laws and own positions are aligned with the principle “the best interests of the child” as outlined in the convention. As Sweden hasn’t incorporated the Convention on the rights of a child, it is consequently the Swedish law that regulates the principle the best interests of the child and the handling process. The Administrative Procedure Act (Förvaltningslag) is the law that the Migration Authority has to adhere to. This law doesn't mention the best interests of the child, neither as a concept nor as a principle. It’s also not provided with any time limit for the handling of these cases. The only thing close to a time limit in the Administrative Procedure Act is the requirement that cases are to be handled simply, quickly and cost-effectively. However, the principle the best interests of the child is considered in a so-called portal paragraph in the first chapter of the Aliens act, (Utlänningslag) stating that the best interests of the child should be considered in cases involving children. The paragraph shall include all cases, which apply the law. Even though proposals to introduce time limits for handling these cases have been put forward, there is today no decisions made on this topic. Regarding long handling times the principle the best interests of the child can be interpreted in different ways. It is up to the Migration Authority to interpret and decide what should be given the highest weight in relation to Article 3 when judging whether the handling times should be considered to meet the requirements of the Convention on the rights of the child. On the one hand efficiency in relation to short handling times is requested, but on the other hand accuracy, through a thorough investigation of what is in the best interests of the child. In 2020 the Convention on the rights of the child is expected to be incorporated into Swedish law, which should calm down the debate. This law will, potentially, clarify the legal position regarding the child right perspective, when handling cases involving children.
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