The Gymnasium Act is a Legal Nightmare

The Migration Court in Stockholm rejects secondary school, not only as a colleague of the Malmö Migration Court, but considers that the text is inconsistent with Sweden's obligations to Sweden. EU

Photo: Jonas Ekströmer / TT

The Migration Board has made a different interpretation of the law than the courts.

The fact that a Swedish court disapproves of a law is very unusual. The form of government states that a court must take into consideration the position of the Riksdag as the principal representative of the people.

Now, two courts have chosen not to apply the law. Administrative Court – The Migration Court – in Malmö, reinforced by an extraordinary judge, has not rendered a judgment when the law was revoked.

At the same time, the Swedish Migration Board makes decisions following a decision on residence permits, in accordance with the letter of the law concerned by the court's assessments. Some decisions are immediately applicable and can not be changed. As Swedish administrative law indicates: "A positive decision has a negative legal force". This means, in clear terms, that one can not appeal.

If the Migration Court disapproves of the law, it means that those who have not reconsidered their case will be refused, while those on the right side may stay. The applicant in the present case has in no way been able to prove his identity and has refused to carry out any medical age determination.

For those who live between hope and despair, it is a nightmare. But it is also a crisis of legitimacy for the government – and the Riksdag – that has called for a law seized by the courts. The ability of the courts to refuse laws is considered a constitutional safety valve, nothing else.

For the Migration Board, the question is also complex. It is quite unknown that an authority in the same way that a court can refuse to enforce a law that is not consistent with the highest law. Sweden has, as it is said in the state language, a "legal oriented administration."

Government authorities have obedience to the government, but its officials must at the same time try laws similar to courts. In this case, it is sufficient to note that the law that the Migration Board chose to apply was rejected by two different courts.