Identification

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The legal framework with regard to the needs of vulnerable asylum seekers is part of the 1994 Law on the Reception of Asylum Seekers (LMA). The LMA provides the legal framework and briefly mentions the provision for the needs of vulnerable groups. These are not defined but the Migration Agency has set out guidelines, routines, for the reception of vulnerable asylum seekers, mainly including minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation[1] (See Reception Conditions).

Screening of vulnerability

All asylum seekers are offered health screening and a majority of them choose to undergo a health check in practice. This is particularly important in relation to survivors of torture and traumatised persons. However, because of confidentiality rules, this information is not automatically available to caseworkers. The legal counsel can however request access to this information with the permission of the applicant.

The Migration Agency does not yet collect disaggregated statistics on the number of asylum seekers identified as vulnerable, with the exception of unaccompanied minors.[2] Under the routine mentioned above, all Migration Agency staff are required to report vulnerabilities in an official note that is fed into a common database, mentioning at which stage in the procedure vulnerability is observed and what measures this has led to. It is stressed that a vulnerability assessment must always be made in the initial process.

This routine is monitored by the Migration Agency to evaluate whether assessments of special needs have been made in all cases, how the documentation of these needs has been recorded and what measures have resulted from the assessment. It is noted in the guideline that the list of vulnerabilities in the EU Directives is not exhaustive. Some special needs need not be registered in an official note. Examples of these are when the Migration Agency notifies the need for a guardian or informs a municipality that an unaccompanied child needs protection there, or the response of an applicant who has requested a case officer, interpreter or public counsel of a specific gender.

In 2022, 515 cases of suspected human trafficking were identified at the Migration Agency, including 221 women and 294 men. 21 were children, out of which 11 girls and 10 boys. The Migration Agency provided information to the regional coordinators at the Social services in 68 cases and to the Police in 354 cases. The SMA does not always require the consent of the applicant to do so.[3] Moreover in 2022 a total of 85 persons accepted temporary residence permits, out of which 30 women (1 girl) and 55 men (1 boy). The large increase compared to the year 2021 is explained by suspected exploitation for work purposes, including applications for work from abroad. The most common nationalities were Thailand (173), Uganda (75), Kenya (29), Ukraine (45), Vietnam (16), Nigeria (12), Mongolia (12) and Afghanistan (12).[4]

Age assessment of unaccompanied children

The Migration Court of Appeal clarified in a precedent-setting ruling of 2014 that the burden of proof lies with the applicant to establish their stated age as probable, with the aid of supporting documents, where available.[5] Where documents or other evidence proving the applicant’s age as probable are not available, the age stated at the time of lodging of the application is noted down.

If there are strong indications that the applicant has reached majority, then the claimed age can be altered in the records and the person transferred to the procedure for adults. These assessments made by the Migration Agency have been subject to criticism, as reported in previous versions of this AIDA report. In a legal position regarding age assessments, the Migration Agency clarifies that it can only be applied in unambiguously clear cases, where there is no room for a different assessment than that the applicant is an adult.[6] It must be obvious that the applicant is an adult, or that there is evidence proving the applicant´s age, otherwise the age should not be altered.

An applicant can make their date of birth and/or minority probable. When there is a doubt on the minority (but not obvious as mentioned above) the Aliens Act foresees that the Migration Agency must make a temporary decision on the age.[7] In the legal position the Migration Agency states that the starting point is that such an age assessment should primarily be made on the basis of documentary evidence together with the applicant’s own oral information. Documentary evidence can in some cases be considered to have low evidentiary value because the authorities consider them easy to falsify, or because they are based on oral statements. Such has been the case of the tazkira. If this evidence is not sufficient and the Migration Agency therefore considers making a decision whereby the applicant is assessed to be an adult, the Agency is obliged to offer the applicant a medical age assessment.[8] Consent of the applicant and their guardian is required. The cost of such an examination is borne by the state.

The temporary decision on the age of the applicant can be appealed, but applies immediately even if it is appealed. However, the Migration Court may decide that a temporary decision will not apply until further notice. At the same time, when the Migration Agency takes a decision regarding the asylum claim, it must make a final assessment of the applicant’s age. The consideration of the applicant’s age in the decision in the asylum case replaces the temporary decision on age.

Any authority that comes into contact with unaccompanied asylum-seeking children needs to take an independent position on the applicant’s age within the framework of its activities and the rules governing it. However, in practice other authorities will share the age assessment of the Migration Agency and act accordingly.

In May 2016 the government gave instructions to the National Board of Forensic Medicine (Rättsmedicinalverket, RMV) to initiate methods for medical age assessment, while at the same time recognising that absolute accuracy was not achievable.[9]

RMV introduced a new system in March 2017. Assessments are conducted based on medical examination of wisdom teeth and knee joints. RMV’s medical age assessments to determine whether a person is under or over 18 years are based on an overall assessment of two studies: X-ray irradiation of wisdom teeth (panoramic image), and an MRI of the lower part of the femur. Scanning and two independent analyses of the respective images will be made by external clinics. Based on the results of these studies, RMV makes a medical age assessment using a standardised matrix. A coroner in RMV will then issue a forensic opinion on the age in the form of a probability assessment in text form. The forensic opinion is thus designed as a probability assessment.[10]

The statement from RMV will then become part of the supporting evidence that the Migration Agency uses to issue a decision on age.

 In 2022, a total of 61 persons were considered as adults following an age assessment procedure:

Source: National Board of Forensic Medicine, Statistik, available in Swedish at: https://bit.ly/2NukOSX.

Critique on reliability and accuracy

The methods used for age assessments have been heavily criticised by the medical community, including by the experts obliged to carry out the tests. Both the Paediatric Medical Association, as well as international experts on age assessment, have distanced themselves from the method of measuring the knee joint. The media has also put forward criticism of the reliability of the methods used and the weight the assessment carries in the decision of the Migration Agency. Background information on the matter is included in the previous versions of this AIDA report.

In January 2020, the Swedish Bar Association elaborated on their position from 2016 in their guidance to lawyers representing vulnerable clients. It was inter alia stated that a lawyer’s involvement in the client’s age assessment is at risk of being considered contrary to good practice, but that the situation is complex, as the client’s refusal to undergo a medical age assessment may, for example, risk being interpreted to the client’s detriment. Great caution is required in these cases and advice from the lawyer on participation must be preceded by careful consideration and explanations for the client and a possible legal guardian.[11]

After several critiques by the Swedish Council on Medical Ethics, the Council of Europe Commissioner for Human rights and NGOs and lawyers, in April 2019 the Social Democrats and the Green Party decided that a commission of inquiry would be set up. The commission of inquiry were to assess the situation through an independent review and should have submitted its final findings by 31 May 2024 at the latest.[12]

As mentioned in the previous AIDA report, age assessment procedures have also been litigated before courts. In May 2019, the Swedish Refugee Law Center and Civil Rights Defenders brought a case on wrongful age assessment of an unaccompanied child before the Chancellor of Justice (Justitiekanslern), the Government’s ombudsman in the supervision of authorities. Nevertheless, in June 2020, the Chancellor of Justice found that there had been no human rights violation. The Chancellor of Justice referred to the fact that the Migration Agency had granted the child a temporary residence permit for studies and that the expulsion order had not been implemented. The Chancellor of Justice did not direct any critique regarding the age assessment, either in the individual case or on the issue as a whole, but referred, among other things, to the above-mentioned commission of inquiry.[13]

On 11 June 2021, RMV stated that the authority sees an opportunity to further differentiate the forensic opinion on age. In the future, RMV would respond in the documentation to the Migration Agency with different degrees of probability that a person is under or over 18 years of age, depending on the combination of results of the two different surveys.[14] The national inquiry which examined the method applied by RMV for medical age assessment in the asylum process, the current underlying scientific basis for the method, and how the scientific basis and the statements of the Board have developed over time, published its first findings in an interim report on 28 October 2021.[15]

The Inquiry stated initially that in a European context, RMV’s method is unique. It is the only method to include an MRI of the knee as part of the assessment. The Inquiry concluded that there are uncertainties in RMV’s probability model. The model is based on underlying scientific data which is more or less complete and clear cut for the different elements, and other assessors draw different conclusions based on a different evaluation of the underlying scientific data. Some such uncertainties have manifested themselves over the period that the model has been in use. These changes have meant that the same examination result regarding several combinations of maturity of knee and third molars has produced different statements over time. Furthermore, RMV’s estimated percentages are subject to uncertainty.

For uncertainties, risks, and consequences to be evaluated by the Swedish Migration Agency and the Migration Courts in particular, a comprehensive account is needed. For further knowledge of how certain or uncertain the probability model is, its robustness should also be tested by RMV. The Inquiry is also tasked with ensuring that one or more research studies are conducted. The Inquiry will come back to the question of the form of RMV´s statements in its final report. As mentioned above, the Inquiry will not publish its final findings until May 2024. The SMA responded positively to the inquiry, highlighting the importance of such reviews as medical age assessment can be of decisive importance for asylum seekers. While stressing the need for the results of the assessments to be designed in a manner that makes it possible for non-medically trained SMA employees to interpret them, it agreed applicants should receive enough information about the process and decision making so that they can meaningfully present objections and rebuttals.[16]

Responding positively as well, RMV published an updated methodological description on 5 September 2022, containing a more comprehensive account of uncertainties and factors affecting the model.  The basis for assessment or the form of statements were not changed.[17]

In December 2022 the new Swedish government decided that the inquiry should be discontinued. I The decision to discontinue the inquiry has been criticised by several organisations, including the Swedish Refugee Law Center.[18]

[1] Migration Agency, Rutin: Ta ställning till särskilda behov, initialt and Rutin: Insatser för asylsökande med särskilda behov.

[2] Information provided by the Migration Agency, January 2018.

[3] Information provided by the Migration Agency, 2023.

[4] Migration Agency, Annual Report 2022, Dnr: 1.3.2-2023 – 2262, available at: bit.ly/3JgvP4u.

[5] Migration Court of Appeal, MIG 2014:1, UM 2437-13, 11 February 2014, available at: http://bit.ly/2jQwVWr.

[6] Migration Agency, Rättsligt ställningstagande Åldersbedömning, RS/040/2021, citing Government, prop. 2016/17:121, Åldersbedömning tidigare i asylprocessen, available in Swedish at: https://bit.ly/3vDAwMW, 17-18.

[7] Ch. 13, Section 17, Aliens Act.

[8]  Ch. 13, Section 18, Aliens Act.

[9] The Swedish Government, Uppdrag till Rättsmedicinalverket att genomföra medicinska åldersbedömningar       Dnr Ju2016/03931/Å, available in Swedish at: https://bit.ly/3tfRou4.

[10] New findings regarding the reliability of the methods vis-à-vis female asylum seekers led to a suspension of age assessments in November 2017 pending the outcome of a more in-depth investigation by the RMV.  The investigation resulted in new guidelines regarding female asylum seekers and the tests were resumed.

[11] Swedish Bar Association, Promemoria Advokatens uppdrag för svaga och utsatta klienter, updated January 2020, 35-36, available in Swedish at https://bit.ly/3if0Bg0.

[12] Government, Terms of Reference, Utökat kunskapsunderlag om Rättsmedicinalverkets metod för medicinsk åldersbedömning i  asylprocessen, Dir. 2020:64, available in Swedish at: https://bit.ly/39uG5Us.

[13] Civil Rights Defenders, Civil Rights Defenders kritisk till JK-beslut om medicinska åldersbedömningar, available in Swedish at: http://bit.ly/3cQ2TPu.

[14] National Board of Forensic Medicine, 21 June 2021. Only available in Swedish at https://bit.ly/34RYQ5g /

[15] Swedish Government Official Report (2021) SOU 2021:84, Granskning av Rättsmedicinalverkets metod för medicinsk åldersbedömning i asylprocessen, Summary available in English at https://bit.ly/3JriwvW.

[16] SMA, Remissvar över delbetänkandet Granskning av Rättsmedicinalverkets metod för medicinsk åldersbedömning i asylprocessen (SOU 2021:84), available in Swedish at: https://bit.ly/42XLeP4.

[17 National Board of Forensic Medicine, ‘Uppdaterad metodbeskrivning för medicinska åldersbedömningar’, 5 September 2022, available in Swedish at: http://bit.ly/3Jfhwx2.

[18] Swedish Refugee Law Center, Kommentar till nedlagd utredning om medicinska åldersbedömningar, 19 January 2023, available in Swedish at: http://bit.ly/3KevpfB.