Hur gammal är du egentligen? - Om ålderns betydelse för frågan om uppehållstillstånd samt användningen av medicinska åldersbedömningar i asylprocessen

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: In 2015, 35 369 unaccompanied minors sought asylum in Sweden. A large amount of these children came from Afghanistan – a country that is in lack of a civil registration system and where the citizens lack access to identity documents. The issue regarding the age of the applicant forms part of the substantive examination of weather he or she is in need of protection. This entails that it is of great importance to clarify how old the applicant is. The fact that a majority of the world’s asylum-seekers are in lack of identity documents has made it necessary to develop objective methods for age assessment. Because of this, the Government ordered the National Board of Forensic Medicine to begin the implementation of medical age assessments in the asylum process. In the first part of this essay I examine to what extent the age of the applicant affects his or her chances to be granted a residence permit, while in the second part I address difficulties related to the use of medical age assessments. My survey has been conducted from a rule of law perspective and from a child rights perspective. I have used a legal-judicial method and my questions have been studied on the basis of the generally accepted sources of law. The topic is closely related to the medical science and therefore it has been essential to also study material that is not strictly legal. The provisions regarding the possibilities to be granted a residence permit are found in Chapter 4 paragraphs 1–2 a and Chapter 5 paragraph 6 of the Swedish Aliens Act. There are no child-specific provisions, but in Chapter 1 paragraph 10 of the Swedish Aliens Act, it is stated that all decisions concerning children shall be taken in compliance with the principle of best interest of the child. The principle is not supposed to be given such a broad meaning that it becomes a separate reason for granting a residence permit, but when the examination regards a child it is said to be of great importance to interpret the provisions in a child-sensitive manner. Despite these respects, the question regarding the age of the applicant seem to be of particular importance regarding the possibility of internal relocation, when examining if there are any impediments to enforcement, upon relocations pursuant to the Dublin Regulation and for the application of Chapter 5 paragraph 6 of the Swedish Aliens Act. The methods for medical age assessment are unregulated, but the legal support for the use of such methods is based on article 25.5 of the Asylum Procedures Directive. The medical age assessment constitutes one of several means of proof and shall be assessed together with all other evidence. What is problematic is that the medical method has been criticized to be in conflict with the scientific requirements. Furthermore, it is said that the decision maker tends to admit the medical opinion to an excessively high level of probative value. This makes it possible to question whether the current system for the use of medical age assessments, truly satisfies the rule of law-requirements. A basic requirement is that the administrative procedure shall be performed in accordance with the rule of law. The decision-making shall be characterized by foreseeability, impartiality and equality. However, the medical methods do not seem to respond to these requirements. As a result, one can ask if it is justified to let the 18-year limit be decisive for whether a person is to receive special treatment. In order to meet the rule of law-requirements, to be in compliance with the child rights perspective and to reduce the risk of children losing their special rights, there are reasons for opening up for a more flexible approach to the 18-year limit. One option to consider may be of making a need assessment, instead of making an age assessment.

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