Expulsion on account of criminal offence

The provisions on expulsion orders issued by courts on account of criminal offences are set out in Chapter 8 of the Aliens Act (2005:716). Under these provisions, an alien can be expelled for an offence that is punishable by imprisonment or if the court sets aside a suspended sentence or probation that has previously been imposed on the alien. However, the alien must have been sentenced to a more severe penalty than a fine. A further condition is that it can be assumed that the alien will be guilty of continued criminal activity or that the offence is particularly serious. Expulsion can be for a certain period or for life.

When a court considers whether an alien should be expelled, it is to take into account the alien's ties to Swedish society. In making its assessment the court has to pay particular attention to the alien's personal circumstances and family situation and how long the alien has been in Sweden. Factors such as employment, housing and social adjustment, as well as knowledge of Swedish, should also influence the assessment.

Moreover, the court is to pay particular attention to whether the alien has any child in Sweden and, if so, the child's need of contact with the alien, the nature of the contact in the past and how it would be affected by the alien's expulsion.

Account has also to be taken of whether there is an impediment to enforcement of the expulsion under the relevant provisions contained in the Aliens Act, e.g. a risk of the death penalty, corporal punishment, torture or persecution, so that the alien cannot be sent to a particular country or if there are other special impediments to the enforcement of the expulsion order.

There are no provisions as to when the question of expulsion has to be examined. This means that both the prosecutor and the court can decide whether or not to raise the matter. However, expulsion orders on account of criminal offences are always made by the court handling the criminal case.

Applications for a residence permit on grounds of protection can be made to the Swedish Migration Board

An alien who has been expelled by a general court on account of a criminal offence and wishes to cite an impediment to enforcement and remain in Sweden may apply to the Swedish Migration Board for a residence permit on grounds of protection. If the Migration Board finds that the alien should be granted a residence permit on grounds of protection, it is not to make a decision on the matter but instead will refer the case, along with its own opinion, to the migration court to which the Migration Board's decision on whether to grant a residence permit could have been appealed. If the court finds that the alien is to be granted a residence permit on grounds of protection, the court may, under Chapter 8, Section 14 of the Aliens Act, cancel the expulsion order and grant a residence permit. The court has the same authority if the alien has appealed against a decision by the Migration Board not to grant a residence permit on grounds of protection. Decisions of the Migration Court may be appealed to the Migration Court of Appeal.

For an alien who has been expelled on account of a criminal offence and wishes to apply for a residence permit on grounds of protection, it is therefore natural in the first instance to approach the Swedish Migration Board.

Applications on other grounds

Under Chapter 8, Section 14 of the Aliens Act, the Government may cancel an order of a general court on expulsion on account of a criminal offence or grant a temporary residence and work permit if there are special grounds why the order shall no longer apply. The Government has the same authority if there are impediments to the enforcement of the order. For an alien who has been expelled on account of a criminal offence and wishes to apply for a residence permit on grounds of protection, it is natural in the first instance to approach the Swedish Migration Board (see above).

'Special grounds' have not been precisely defined in law, but one example is when the convicted person is suffering from a severe illness.

The Government's right to grant clemency also covers expulsion on account of a criminal offence. As a result, the question of clemency is also considered in such cases.

Concerning matters handled by the Government, it is the expellee him or herself who applies in the large majority of cases. Other persons may also apply.

An application may be made both before and after the expulsion order has been enforced. There are no formal obstacles to the examination of the application during the period when the convicted person is serving the sentence. However, the factual circumstances that may form the basis for assessing whether there are special grounds why the order should not apply can change over time. This means that a final examination cannot be made until the end of the enforcement period.

Applications should be made in writing and contain the following information:

• the name, personal identity number, nationality, address and telephone number of the expellee;
• the judgment concerned: the name of the court, the date of the judgment and the court's case number;
• what decision is being sought from the Government; and
• what reasons are being cited as grounds to approve the application.

If the application has been written in a foreign language, the applicant personally should try to have it translated into Swedish.

The application should be signed personally by the applicant or their representative. If a representative is engaged, a power of attorney has to be submitted in the original along with the application. A person who engages a representative has to meet any costs for this personally.

The documents filed in a case concerning cancellation of an expulsion order issued by a court on account of a criminal offence become official documents. This means that the details of the case are accessible to the public, unless they are confidential for any special reason under the Public Access and Secrecy Act.

It is up to the applicant to submit the facts he or she wants the Government's decision to be based on. The applicant can refer to everything he or she considers relevant to the assessment. The facts adduced by the applicant should be in writing. Any testimonials that the applicant wants to adduce should be submitted along with the application. If necessary facts are not available when the application is filed, the applicant may be given the opportunity to supplement the application within a reasonable amount of time, and in certain cases the applicant is also asked to submit some supplementary material.

The procedure followed is mainly written. When the preparation of the case has been completed, it is presented to the Minister of Justice, who then presents it to the Government. It is the Government that takes the decision in the case.

Processing times can vary, but cases usually take several months.

The Government's assessment must never be a matter of a straightforward review of the court's expulsion order. In its assessment of the expulsion order the Government may never review the question of guilt in the criminal case. What the Government takes particular account of are circumstances that have occurred after the court issued the expulsion order and that could not reasonably have influenced the court. It may turn out to be the case, for example, that the consequences of enforcing the expulsion order in the particular case would be unreasonable. However, a person who forms ties with Sweden after the expulsion order has been issued - through marriage and children, for instance - is deemed to have done so in the knowledge that the new family would not be able to live together in Sweden during the period covered by the expulsion order. It is very unusual for an expulsion order to be cancelled.

Government decisions are taken at the regular weekly government meetings. A written decision is sent to the convicted person. If any other person has applied, that person receives a copy of the decision.

Applications for permission to pay a short visit to Sweden can be made to the Swedish Migration Board

Under Chapter 8, Section 20 of the Aliens Act, a person who has been sentenced to expulsion and who has left the country may be granted special permission by the Swedish Migration Board to pay a short visit to Sweden. The visit has to relate to an exceptionally important matter, such as a visit to a seriously ill relative or attendance at the funeral of a relative. If there are special grounds, such permission may also be given when an application is made by someone other than the expellee. A decision by the Swedish Migration Board to refuse permission for a short visit cannot be appealed.