In its first ruling concerning the new citizenship law that came into force on June 6th, the Migration Court in Malmö earlier this month rejected an appeal mounted with the help of the Fair Transition campaign group, arguing that – unlike in the cases cited as precedents in the appeal – the government and the parliament had clearly intended that the new requirements should apply to pending cases.
In an interview with The Local, Fredrik Löndahl, the court’s Chief Judge and one of the judges who ruled on the case, said he expected the Migration Court of Appeal, Sweden’s highest migration court, to hear a further appeal.
“I do expect it to continue to the appeal court,” Löndahl told The Local. “Definitely.”
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The case, he said, raised a “very distinct issue” concerning whether the new citizenship law or the previous rules should apply to applications submitted before the law changed. "So there's a good chance, I think. But it's not for me to decide."
Löndahl said that his court had chosen to use the rejection decision as a pilot case after receiving a large number of similar appeals from rejected applicants. Löndahl himself, the president of the court, participated in the judgement, as did two other judges, an unusual amount of scrutiny for an appeal case.
"This is something we can do in Swedish law when, for example, there are issues with new legislation," he explained. "This case raised issues related to the EU law and also of course the big issue of whether the available law or the old law should be applied. There were some big issues that needed great attention."
He said that the attention his court had given the case would also send a "signal" to the Migration Court of Appeal, alerting it to the fact that the ruling dealt with significant questions which would merit further consideration at a higher level.
The man who appealed in the case has until October 1st to submit an appeal to the Migration Court of Appeal in Stockholm, which will then usually decide whether to take up the case within a month or two. After that judges will work on the case for as long as it takes before delivering their judgement, which will be the final word on the case.
"There is no time limit, but this is a clear, distinct legal question, so hopefully it will not take very long," Löndahl said. "It is something that we need to get a response to. It would be good for us and good for everybody to know what the law is."
Whether the court takes up the case, he warned, will also partly depend on how convincing it found the reasoning given in the request for further appeal.
Löndahl said that even though the judgement had been sent out in a press release, this did not bind other judges, either in his court or in the Migration Court in Gothenburg, which is also hearing appeals in citizenship cases.
"If we do this in one pilot case, the other judges can either follow our opinion or they can do otherwise, but they don't have to repeat all the arguments."
The appeal his court had received, which was prepared by a lawyer working with the Fair Transition campaign group had, he said, raised important legal arguments.
"We wouldn't have treated the case in the way we did if we thought these were vague arguments that could be dismissed at once," he said. "They needed to be looked into thoroughly and also took some consideration until we reached the conclusion."
He said he expected the Migration Court of Appeal to come to the same conclusions as the Malmö court on the first of the three arguments in the appeal, which covered whether the lack of transitional arrangements was lawful under Swedish law.
“In this case there was a very clear intention from the Parliament,” he said.
But he said he was less confident of his decision in the second argument, which covered whether EU law should have a bearing on these cases. "It is an area where you can have different opinions. Absolutely, yes," he conceded. “I believe our ruling is correct, but you never know until it is done and you have the result from the Migration Court of Appeal."
Finally, Löndahl said that the fact that his court had published a pilot judgement rejecting the appeal in this particular case should not deter other foreigners who have had citizenship applications rejected from appealing.
“The last word has not yet been said and there is still a possibility that there will be a change,” Löndahl said. “I would not say it’s not worth appealing on this.”