Likvärdigt skydd för mänskliga rättigheter? : En analys av Bosphorus-presumtionen och dess tillämplighet på anpassningen av svenska asylregler till EU-rättens miniminivå

Sammanfattning: In 2015, the European Union (EU) was facing the largest migration crisis in modern history. In light of the high reception of asylum seekers in Sweden during the autumn of the same year, a temporary law (2016:752) was adopted which restricted the possibilities of obtaining a permanentresidence permit and of family reunification. The law has received criticism for being contrary to Swedish convention commitments, especially the right to respect for family life and the prohibition of discrimination according to Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). Against the backdrop of this criticism, this thesis aims to examine whether the so-called Bosphorus presumption, also known as the presumption of equivalent protection, could be applicable in a hypothetic case where Sweden is brought before the European Court of Human Rights (the Court) for violating the Convention as a result of the temporary law. The criteria for the application of the presumption are firstly that the intrusive measure, here the restriction of the right to family reunification, can be said to fall within the scope of the strict international legal obligations of the state, meaning that the state can be said to have exercised a certain amount of discretion and to have enjoyed a certain margin of manoeuvre. The conclusion of this thesis is that likely would be considered to have exercised discretion as well as enjoyed a margin of manoeuvre when restricting the right to family reunification by adopting the temporary law. This conclusion is mainly based on the fact that the international legal obligations in this case flow from directives, which are binding on member states only as to the result to be achieved, and leave the choice of form and methods to the authorities of the member state. Furthermore, the directives which the temporary law is based on are so-called minimum directives, which allow for the member states to provide a higher level of protection.