frsrdg · GZ04JO1 · 2011-11-16 00:00:00 — This regulation cannot, however, be interpreted as it was by the au- thority. In the adjudication it is pointed out that the development of freedoms and rights has led to increasing stringency in the demands for legality and the rule of law. The regulation in question should not be applied today to means of earning a living that are not legally prohibited. Begging is not forbidden by law in , even less so vagrancy. The refusal of entry therefore lacked any basis in the Aliens Act. Criticism is expressed of the County Authority. As the measures involved far-reaching infringements of the legal rights of individuals, this criticism is grave. There is nothing in the material to show that the intervention was based on the fact that those deported were all and that they were there- fore subject to negative discrimination. The in which the refusal of entry clearance was enforced was nevertheless likely to disturb confidence in the . The outcome of the adjudication means that there has been no reason to go into the question of whether the deportation was compatible with the special regulations that apply to citizens of the EU. In view of the debate that has been taking place about foreign beggars, it is, however, pointed out that it would probably be difficult to devise legislation about foreigners in that would enable EU citizens who devote themselves to begging of the kind demonstrated in this case to be refused entry to . In the summer of 2010 it was reported in the mass media that the had deported who had spent their time begging. Information requested by the Parliamentary Ombudsmen made it clear that during 2010 the County Authority had invoked item 2 in the first paragraph of Section 2 of Chapter 8 of the Aliens Act to refuse entry to to foreigners be- cause they had supported themselves by begging. In one case, a decision to refuse entry clearance concerning 26 Romanian citizens had been enforced on 18 February 2010. I then decided to initiate an enquiry to examine what had happened more closely. 2 011 /1 2:JO1 B I L A G A 10 The circumstances made clear by the actions of the authority In the course of surveillance of beggars in at the beginning of 2010 suspicions arose that these were the victims of organised trafficking. These suspicions were based on the circumstance that it had been possible to trace a large number of foreign beggars to an apartment in in southern . When a patrol visited the apartment 38 individu- als were found there, all of them Romanians. Two men, one of them the te- nant of the apartment concerned, were suspected of exploiting the people there as beggars. A judicial enquiry was launched on 2 February 2010. At the beginning of the month several of those living in the apartment were questio- ned. The suspicion of trafficking was later withdrawn and the judicial enquiry then terminated. On 18 February 2010 the authority made a raid which involved de- taining the individuals staying in the apartment in for questioning by virtue of Section 9 of Chapter 9 of the Aliens Act. In the case of many of these a decision to refuse entry clearance had been made on 16 February 2010 pursuant in item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act. A memorandum drawn up by one of the officers in command of this raid, Sergeant , stated that individuals linked to the apartment were staying in illegally and devoted their time to begging and also that certain of them were known in connection with earlier crimes. According to the memorandum, the begging was undertaken in an organised . The raid involved 21 officers and an interpreter. There were 36 people in the apartment. They were taken to the station in , where they were each questioned briefly. An additional decision to refuse entry clearance was issued. The justification for this and the previ- ous order used the same template: NN who arrived in [with the date where relevant] is to be repatriated to by virtue of item 2 of Section 2 of Chapter 8 of the Aliens Act, as NN has devoted his time to vagrancy/begging, see Govt. 1979/80 96 p. 119 and the decision of the Chancellor of , reg. [The Govt. referred should correctly be Govt. 93: in a few cases the reference has subsequently been corrected. Parliamentary Om- budsmans note.] Most of the decisions had been made by Superintendent , the remainder by Chief Inspector . The records of the individual cases show that seventeen of those refused entry clearance supported themselves either completely or partly by begging. Of these, eleven had been observed begging by the on one or several occasions and the other six stated themselves that they had earned their liveli- hood by begging. In eight cases those refused entry clearance claimed that they had supported themselves by playing music in public places. There is no information about one person. The records support the conclusion that seven- teen of the foreigners supported themselves by begging and eight as street musicians. B I L A G A 10 20 11 /12 :JO1 On the same day as the raid, the authority decided that 23 of those who were to be refused entry clearance were to be detained in custody and three subject to surveillance. The decision to refuse entry clearance was en- forced later the same evening when those concerned were driven by bus to . The response of the Authority The County Authority was asked to make an enquiry and account for its opinion on the management of the refusals of entry clearance. The authority was asked, for instance, to clarify the background against which the measures were adopted, the conditions on which refusal of entry decisions could be made because foreigners were supporting themselves by begging, as well as questions concerning records and the ground on which decisions were based. In its response, which was signed by the Deputy Chief Commissioner of the County Authority , the authority gave the follow- ing description of the background for its actions. With experience from previous cases of convictions for trafficking in human beings for the purpose of begging (e.g. 0201-K229186-08 and 0201- K271295-09) and the circumstance that on this occasion there were many beggars in central areas of , the Border Unit initiated a sur- veillance investigation focusing on trafficking in human beings for other than sexual purposes. This investigation was given the code name G-Tiggeri [G- Begging]. The aim of this surveillance was to information to confirm or refute the crime of trafficking in human beings. Surveillance in this case was under- taken from 14 January 2010 until 18 February 2010. While the surveillance was taking place a survey was made of the individuals who spent their time in central begging. This survey enabled the surveillance team to identify specific individuals at the various places where begging was going on, as well as the patterns of movement of the individuals concerned. It did not take long before the surveillance team was able to determine that there was a link between most of the individuals begging for money in the central areas of as, for instance, they gathered after having begged for money during the day to home together by car. They met at the City Terminal and places close by. Continued surveillance revealed that the indi- viduals were all living at the same address, in the same apartment, in in southern . When the were summoned to the apartment in question in connection with an alarm on 29 January 2010, 38 individuals were encoun- tered, all of whom seemed to be living in the apartment. The social authorities were informed because of the environment and conditions in the apartment, with for instance vermin, as there were underage children in it. The underage children were placed, together with their mothers, in alternative accommoda- tion by the social authorities. On 2 February 2010 it was considered that there was sufficient evidence to start a judicial enquiry into suspected trafficking in human beings (0201- K32481-10). The investigative measures adopted consisted of questioning individuals who had been observed begging and individuals who could be linked to the apartment in . This enquiry revealed that the individual whose name was on the lease of the apartment in question was also the regis- tered owner of a car that had been observed by the surveillance team in con- nection with transport of the individuals seen begging. 2 011 /1 2:JO1 B I L A G A 10 Continuation of the enquiry did not disclose enough information to cor- roborate the crime of trafficking in human beings but it could be shown that begging was being undertaken with some degree of organisation. Altogether the surveillance has involved 60 individuals. Surveillance revealed a repeated pattern in which individuals left the apartment concerned and were transported, in some cases together, to central to beg. They were positioned in fixed spots in the city, but the individuals shifted from one position to another from day to day. The surveil- lance team observed what were perceived to be placement meetings before the individuals left to be positioned in central . A decision was made to change the focus of the enquiry and to concentrate on control of aliens and possible refusal of entry clearance pursuant to the Aliens Act. After presenting the provisions of the Aliens Act, the authority de- scribed the directions that had been issued by . It was pointed out for instance that: One of the reasons for the issue of CM [a circular, Parliamentary Ombuds- mans note] 7/10 in 2010 is that information had been received that authorities were applying the provisions in item 2 of the first paragraph of Section 1 of Chapter 8 of the Aliens Act differently with regard to the possibility it provided of refusing entry to EU citizens involved in begging in organised forms. CM 7/10 shows that considers that there is scope to invoke item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act to deport EU citizens involved in begging in organised forms. Refusal of entry based on this provision does not require any crime to have been com- mitted. The provision does not require this form of livelihood as such but conduct and a way of earning a living that is undesirable. In cases of this nature authorities often encounter several factors in addition to the begging that have to be taken into account. If there are other reprehensible circumstances, then these together can mean that entry may be refused. These circumstances include how the begging is undertaken, for instance if it is organised, has links to criminal activities, involves the exploitation of under- age children or other vulnerable individuals, has taken the form of con tricks, involved threats or disturbance or if untrue information has been given in connection with the begging. An overall assessment of the prevailing circum- stances has to be made. In circumstances like these, the assessment of is that it is possible to refuse entry clearance to EU citizens who devote themselves to begging. The authority then went on to account for the regulations in EU law in this area and for certain provisions that are significant in determining whether begging is permissible according to Swedish law, etc. With regard to the assessments of individual cases the authority included the following. This case concerns the decision by the authority on 16 and 18 February 2010 to refuse entry clearance to 26 Romanian citizens. All of the Romanian citizens concerned had been in for less than three months and came to in order to support themselves by begging. None of them have any links with . The decisions to refuse entry clearance have pursuant to the instructions issued by been carried out by virtue of item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act, as it can be assumed that the individuals are not going to support them- selves by honest means during their stay in . The begging has been carried out to some extent in an organised form. The decision has been taken B I L A G A 10 20 11 /12 :JO1 in each specific case after an individual appraisal of its particular circum- stances. These decisions have been based on information in each individual case but, as is stated below, there are some shortcomings with regard to the records maintained on the individual cases. The question that remains is whether EC law offers any obstacle to the implementation of this provision in the Aliens Act in the proposed in the instructions of in cases when a citizen of the EU is involved in begging in an organised form. Neither Swedish courts nor Court of have enquired into the circumstances in with regard to begging, for instance the structure of the social services. There exists, therefore, a great need for opinions that can shed light on the application of the provisions of the legislation on aliens. The judgement of the authority is that, against the background of the conditions in the individual cases, the circumstance that the begging was undertaken in an organised , the wording of the Aliens Act, the travaux préliminaires preceding the incorporation of the movement directive into Swedish legislation and, most importantly, the approach accounted for by the central administrative authority for the Swedish force which later found expression in CM 7/10 the interpretation of item 2 of the first para- graph of Section 2 of Chapter 8 of the Aliens Act on which the decisions of the authority of 16 and 18 February 2010 were based, was a reasonable one. With regard to the records maintained, the reasons given for the decisions etc. the authority stated the following. For all of the cases involved in the enquiry initiated by the Parliamentary Ombudsmen there are transcripts of the interrogations, working notes and the decisions on the measures adopted in connection with the refusal of entry. It can be determined that several of those found in the apartment in Vår- berg were involved in begging which included some degree of simulation of a handicap that did not really exist. All of those refused entry were, however, involved in begging in the loosely organised form revealed by the surveil- lance records and other documentation in these cases. Two of those refused entry clearance were the underage children of individuals who had been beg- ging. Both children took part in the begging. In each specific case it can be seen that the individual concerned has been questioned about begging and the form in which it was undertaken. In one of the cases the interrogation tran- script is lacking and has been replaced by the interrogating officers working notes (AA 630-954/10). The organisation of the begging would have been more effectively docu- mented if relevant sections of the surveillance records and investigation re- cords had been attached in each case. This has not been done, which is a shortcoming in these records. Information from the officers responsible for decisions who were on duty on 18 February show that they were informed about the background, focus, purpose and the operational tactics for the planned raid. In this connection these officers also heard the recorded surveillance material etc. in the on- going judicial enquiry about suspected trafficking in human beings (K 32481- 10). The information deriving from this judicial enquiry has not been re- corded or referred to in the refusal of entry cases themselves, which the authority considers a shortcoming in the records. The Border Unit have stated that they have taken measures to ensure that the requisite documenta- tion is provided in refusal of entry cases and the authority will take no further action on this account. 2 011 /1 2:JO1 B I L A G A 10 Item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act The decisions to refuse entry have been made by the authority by vir- tue of Item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act. This provision lays down that foreigners may be refused entry if it can be assumed that during their stay in or some other Nordic country they will not support themselves by honest means. In view of the way in which this provision was applied here, a retrospective review is required in order to decide how it should be construed today. The earlier Aliens Acts etc. The Aliens Act of 1945 stipulated that an alien arriving in the realm could be refused entry if he is a gypsy or manifestly intends to seek his livelihood through seeking alms [begging, Parliamentary Ombudsmans note] or through travelling from place to place to earn his living by performing music, display- ing animals or other similar occupations (Item 1 of the first paragraph of Section 19 of Chapter 4). Entry could also be refused if it could be reasonably assumed that the foreigner did not intend or was unable to earn his daily bread (Same Section, Item 2). A new Aliens Act was proposed in 1951. The previous stipulations about gypsies and beggars, street musicians etc. (Item 1) were removed while the general regulation requiring a foreigner to be able to support himself honestly (Item 2) was retained. In the travaux préliminaires it is stated that no special regulations were to apply to gypsies but they were to be treated in the same way as other aliens. If there were reasonable grounds for assuming that they would not support themselves through honest labour but by telling, for instance, necromancy or the like they could be refused entry pursuant to the general regulation. was it to be possible to refuse entry to those who through travelling from place to place earn their living by per- forming music, displaying animals or other similar occupations provided that it could not be assumed that their occupation was a cover for some form of asocial activity or that they would be unable to support themselves from do- ing so. On the other hand anyone who manifestly intended to support him- self by begging could be refused entry pursuant to the general regulation. (SOU 1951:42 p. When the draft legislation was circulated for comment, the Detective Su- perintendent in stated that the provision should be applied to en- able undesirable impecunious foreigners to be prevented from entering the country so that they could devote themselves to vagrancy. This gave rise to the following statement in the Government (Govt. Like the Detective Superintendent in , I consider it important to prevent, as far as possible, undesirable impecunious foreigners from entering the country so that they can devote themselves to vagrancy. The proposal therefore stipulates that foreigners who do not intend to earn their living in this country may be refused entry if it cannot be reasonably assumed that they B I L A G A 10 20 11 /12 :JO1 will support themselves here honestly. Cases in which foreigners manifestly intend to support themselves through crime are also covered by this stipula- tion. The statements from the travaux préliminaires cited here cannot be seen in isolation from other legislation of the same period. When the 1954 Aliens Act was enacted, for instance, the 1885 Vagrancy Act was still in force. Concepts such as do not support themselves honestly probably derive from that legis- lation (cf. SOU 1979:64 p. The Vagrancy Act defined a vagrant as some- one who lacks work and around from one place to another without the means of support and anyone who lacking the means of support fails to attempt to earn a livelihood honestly to the best of his abilities and at the same time lives in a way that imperils the public security, order and morality. In practice this law covered tramps and also other asocial elements such as bootleggers, con men, professional gamblers, pimps and prostituted women (see Govt. Vagrancy was not a criminal offence but vagrants could be subjected to administrative coercion, in which they could be sentenced to up to three years forced labour. The Vagrancy Act was replaced in 1965 by the Act on Measures against Socially Harmful Asocial Behaviour, which did not allow action to be taken against harmless beg- gars. The Act on Measures against Socially Harmful Asocial Behaviour was rescinded in 1982. In 1958 new grounds for refusing entry were introduced which laid down that a foreigner could be refused entry if it can be assumed that he will lack adequate funds for the stay in or in some other Nordic country that he intends to visit or for the journey home (Item 1 of the first paragraph of Section 2 of Chapter 8 in the current Aliens Act).This means that impecuni- ous foreigners could be refused entry for this reason, rendering the question of whether it could be assumed that they intended to spend their time begging during their visit to unimportant. In the context of a later review of the legislation on foreigners, the 1975 looked into how the assessment of whether a foreigner intended to support himself by honest means was applied as a ground for refusing entry clearance. It turned out that it was invoked ex- tremely rarely: when it was used it seems to have referred to activities other than begging. (See SOU 1979:64 p. 97 f. and 134.) therefore discussed whether this meant that this ground for refusing entry could be abolished. It decided, however, with reference to the necessity of being able to refuse entry to foreigners who prostituted themselves professionally, that the regulation should remain (op. cit. The same conclusion was reached in the Government (Govt. 1979/80:96 p. According to the wording proposed even those who could be assumed likely to work with- out a labour permit could be covered by the same regulation. took the view, however, that working for money without the stipulated labour permit was not the same as not supporting oneself by hon- est means. This latter concept referred, in the view of lation, to those who devoted themselves to dealings that were themselves criminal or reprehensible or based on criminal or reprehensible activities. 2 011 /1 2:JO1 B I L A G A 10 The provision was therefore supplemented with a reference to working with- out a permit. (See the same Govt. 118 f. and 134.) Since 2006 the ground for refusal of entry laid down in the item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act has only applied to a limited extent to EU citizens and members of their families, about which more below. The Free Movement of Persons Directive and its incorporation into Swedish law Directive 2004/38/EC of Parliament and of the Council of , The Free Movement of Persons Directive, lays down the condi- tions on which citizens of the EU and their family members may exercise the right to move freely within the union. The directive stipulates a minimum level and does not affect national provisions that are more favourable for foreigners than those enshrined in the directive. EU directives are not, in principle, directly applicable in but presume incorporation, i.e. that corresponding regulations either exist or will be introduced into Swedish legislation. An EU directive may, however, also have direct effect, when it applies in irrespective of the contents of Swedish legislation. Parts of the Free Movement Directive contain regulations of this type. Chapter 3 of the Freedom of Movement Directive contains provisions on right of which means the right for a citizen of the union to reside in the territory of another . The directive distinguishes between the right of for up to three months (Article 6) and the right of resi- dence for more than three months (Article 7). Article 6 provides the right of for up to three months without any other conditions or formalities than the requirement of holding a valid passport or identity card. One condi- tion that does apply, however, according to Article 14 is that the union citizen does not become a burden on the social assistance system of the host .