Ett permanent beslut? - Om förhållandet mellan principen om gynnande besluts negativa rättskraft och möjligheten att återkalla beviljade permanenta uppehållstillstånd.

Sammanfattning: According to the principle of negative legal force of favourable decisions, a decision favourable to an individual cannot be changed or revoked after the decision has been dispatched or otherwise notified to the addressee. The principle can be described as a guarantee of legal certainty, as is it considered to ensure security, stability, and predictability for individuals. The principle has gradually developed through case law and doctrine and is today regulated in section 37(2) in the Administrative Procedure Act. A few exceptions to the principle have been crystallised, reserved for situations where the public interest of accuracy and security outweighs the security of the individual. In EU law, there is a principle, the principle of legitimate expectations, which corresponds with the national principle. According to the principle of legitimate expectations, individuals must be able to rely on a decision-maker not revoking what has previously been decided. The principle thus offers support for the premise of the irreversibility of favourable decisions. The principle of negative legal force of favourable decisions can also be said to be expressed through the rules on residence permits for persons in need of protection according to the Aliens Act. In order to qualify as a refugee or a person in need of subsidiary protection, an alien must prove that he or she does not constitute a threat to national security. The Aliens Act is largely based on international conventions and directives, entailing that those who qualify as refugees or persons in need of subsidiary protection are considered to be in need of international protection. The Swedish regulatory framework is based on the general rule that granted permanent residence permits shall remain in force unless there are grounds for revocation or cessation. The legislator has reserved the right to revoke a residence permit in situations where the residence permit is based on incorrect information from the individual, where the individual constitutes a security threat or where the foreigner’s residence in the country has ceased. According to an explicit rule in the Aliens Act, if revocation based on incorrect information or security reasons is required, the legal practitioner must always consider the alien’s connection to the country and whether this speaks against revocation. The Aliens Act also contains preclusion periods which must be regarded in the event of revocation, which further favours the general rule of irreversibility. In the Tidö Agreement, the Government, together with the Sweden Democrats, presented an ambition to revoke granted permanent residence permits with the aim to a paradigm shift in the view of the right to asylum. None of the existing grounds for revocation in the Aliens Act allow such a change, which is why the possibility of introducing retroactive legislation needs to be examined. This thesis therefore discusses the relationship between the principle of negative legal force of favourable decisions and the possibility of revoking granted permanent residence permits. After studying the purpose and function of the principle as well as the legislator’s motivation behind the grounds for revocation in the Aliens Act, the legal situation appears to be that the irreversible nature of granted favourable decisions must weigh heavily – even in migration law. Although there is no prohibition against retroactive legislation in the Swedish administrative law, the legal position appears to be that some caution should nevertheless be taken in situations where the legislation affects individuals. Following a discussion based on the principle of negative legal force of favourable decisions, it can be concluded that a system allowing the revocation of permanent residence permits granted to persons in need of protection, does not appear to be entirely unproblematic. The Aliens Act has gone from a system of permanent residence permits as the general rule, to temporary residence permits as the general rule. Despite this, this thesis asserts that the legislator nevertheless, in the legislative history, has emphasized the importance of the government providing security and stability for persons in need of protection. According to the principle of negative legal force of favourable decisions, individuals can enjoy a security in the sense that the decisions granted remain in force. The proposal to introduce a system enabling the revocation of granted residence permits may therefore appear unpredictable. The proposal to give the persons concerned the opportunity to obtain Swedish citizenship following the possible revocation of permanent residence permits also risks being contrary to the principle, as it cannot be ruled out that the proposal may be disadvantageous to some. A system contrary to the principle of negative legal force of favourable decisions risks being regarded as legally uncertain, which is why the legislator, according to the conclusion of this thesis, should exercise caution in working towards a changed system for residence permit holders.