sou · H1B337 · 2013-05-30 00:00:00 — Många av de språkliga synpunkter vi lämnat om utformningen av Migrations- verkets beslut kan emellertid appliceras även på domstolarnas dom- skrivning. För domstolarnas del har vi dock uppmärksammat framför allt en fråga, nämligen att det finns skillnader hos migrationsdomstol- arna i tillämpningen av sekretessregleringen, vilket leder till att olika domskrivningstekniker används. Problemet är dock inte primärt en domskrivningsfråga. Vi har därför bedömt att frågan ligger utanför ramen för våra utredningsdirektiv. Vi har pekat på frågan men inte lämnat några förslag i denna del. Our remit was to survey how the Swedish Migration Boards decisions are formulated and how they are perceived by individual parties, higher instances and other agencies. The remit included submitting proposals, on the basis of the survey, for how the formulation of the Migration Boards decisions could be improved. We have also had the task of deciding whether there is reason to further improve how the migration courts and the Migration Court of Appeals judgments and decisions are formulated, beyond the work that is already under way. The point of departure for this assess- ment was the survey and proposals concerning the Migration Boards decisions. According to the terms of reference, the Inquiry is to present its findings in such a way that they can provide a platform for con- tinued work on these issues by and the Natio- nal . Legislative provisions for the formulation of decisions From a linguistic point of view, the formulation of decisions is affected by the provisions of the Language Act (2009:600) which states that public administration is to use language that is cultivated, simple and comprehensible. Also important for the for- mulation of decisions are the general provisions of the Admini- strative Procedure Act (1986:223) on the processing of matters and on how administrative authorities are to formulate their decisions. For decisions on certain special migration matters, the Aliens Act (2005:716) contains special provisions on the obligation to state reasons. Chapter 13, Section 10 of the Aliens Act states that a decision must be in writing and contain the reasons on which the decision is based. This applies to decisions on permits, but also decisions concerning documents, status declaration, refusal-of-entry or expulsion. The Aliens Act does not contain any more precise guidelines on more detailed reasons for a decision. Limitations of the Inquirys work year, issues over 200 000 decisions. These decisions are attributable to various parts of the Boards activities and divided into different categories. Our remit was not limited to decisions from only one or some of these categories. But in our view, there were objective reasons for us to focus on decisions from a few different categories. We therefore opted in our Inquiry to concentrate on decisions concerning permits on grounds of a need for protection and on grounds of personal ties, as well as decisions concerning unaccompanied minors. There were several reasons for limiting our closer examination to these particular categories. One reason was that our remit to survey how decisions are perceived by applicants, higher instances and other agencies meant that the decisions we examined should be decisions that are appealed in the special system for hearings and appeals made up of the migration courts and the Migration Court of Appeal. They should also be decisions that are often appealed and that regularly have recipients among groups other than the higher instances. We have also sought to focus on decisions that may contain reasoning concerning the childrens perspective and the situation in the applicants country of origin. We also considered that it was important to choose categories of decisions that are often the subject of media and public interest. Work on writing decisions at To be able to determine how the formulation of decisions could be improved and how the Board can continue its work on these issues, it is necessary to be aware of the key aspects involved in writing decisions at . Matters in our focus categories are decided on once a case officer has drawn up a written proposal for a decision and the decision has been made by an official – a decision maker. Decisions are written in one of the Migration Boards decision templates. staff who write decisions are given internal drafting courses. These courses take place within the framework of the training programme The Migration Programme. is currently reviewing its training needs and the design of drafting courses, among others. The Migration Boards language planning work is undergoing change and just over a year ago the Board employed a special language adviser. Judgments and decisions of the migration courts and the Migration Court of Appeal Legislative provisions for the formulation of judgments and decisions The formulation of judgments and decisions by the administrative courts is not regulated in law to any great extent. As is the case with decisions, the Language Act requires the language to be cultivated, simple and comprehensible. Further, the Admini- strative Court Procedure Act (1971:291) states that the reasons that have determined the outcome of a matter must be stated in the decision (see Section 30). Certain requirements concerning the details that must be included in a judgment or a decision are also included in Section 32 of the Ordinance on record , etc. at the administrative courts (1979:575). This ordinance states that a judgment or a decision is to contain details of the parties claims and objections. Efforts to improve the formulation of the courts judgments and decisions The report by the Inquiry on Public Trust, Greater trust in the courts – strategies and proposals (SOU 2008:106), is an important starting point for work on judgment writing at Swedish courts. The Inquiry proposed that the should draw up uniform and long-term strategies for improvement efforts. has produced such a strategy for writing judgments and an action plan for implementing the strategy. Efforts are ongoing under the auspices of the to implement the strategy. The three administrative courts that are migration courts and the Administrative Court of Appeal in – the Migration Court of Appeal – are all working on issues to do with writing judgments. The courts have examined their own decisions, sought opinions from various categories of recipients of judgments and decisions, and in several cases organised training for staff who write decisions. Survey of how the Swedish Migration Boards decisions are formulated Carrying out the survey To survey how decisions on migration matters are formulated, we conducted a systematic analysis of decisions from the Board. We requested fifty decisions chosen at random but accor- ding to certain precise criteria. Thirty of the decisions concerned permits on grounds of a need for protection, ten deci- sions concerned permits on grounds of personal ties and ten decisions concerned unaccompanied minors. We requested both decisions to grant and reject a permit, and the selection criteria included the requirement that there should be a representative spread of factors such as the applicants gender, age and country of origin, as well as divisions at where the decision was taken. We examined the decisions on the basis of the legal reasoning in them and their readability and comprehensibility. To aid the exami- nation, we drew up criteria for the analysis that the Inquirys legal experts used to carry out a systematic assessment of the decisions. The Inquirys language expert, , analysed the deci- sions from a comprehensibility perspective, based on the recommen- dations for agency decisions drawn up by . She has written her conclusions in a special report con- tained in an annex to this report. Results of the survey Our survey of how the Migration Boards decisions are formulated showed that they often fall short in terms of structure. The in- formation provided in the decisions is written in a way that makes the decisions difficult to understand. A recipient who wants to know why has made a particular assessment is forced in such cases to look for information in several places in one decision. The shortcomings in terms of structure may also be evi- dent in that the Migration Boards evaluations may be mixed with other information on the matter, which makes it difficult to see clearly what the Boards actual reasons for the decision are and what refers to other matters. In some decisions, the applicable legal provisions, the applicants reasons for applying and his or her own account, as well as the Migration Boards actual reasons for the decision are contained under one and the same heading. In such cases, there are often no clear transitions between the various parts of the text and it is not obvious what belongs to which part of the content. The graphic formulation of the decisions is not consistent. Heading levels are not always used logically and the headings are too few. Moreover, the heading does not always reflect the text below it. The Migration Boards decisions also fall short in terms of the legal reasoning. Relevant arguments are often presented, but they are of a general nature and are not applied to the specific case in question. One clear example is the much-used reason concerning written documents, which states that they are of a simple nature and of probative value. This kind of formulation does not provide sufficient information to the applicant, who probably wants a more thorough explanation of why his or her documents are not considered to be of probative value. Moreover, detailed expla- nations are often lacking concerning the conclusions that the avail- able country information has led to for the individual applicant. The legal reasoning concerning the childrens perspective is another example of when the reasons for a decision often only touch on an issue superficially. In many cases, the decision simply refers to what is stated on the issue in the Aliens Act and includes a short sen- tence to say that the childs needs have been taken into account. In many respects, the formulation of decisions is not sufficiently tailored to the recipient. From a language perspective, decisions contain a mix of different styles. It is often clear that parts of the text have been taken from other texts and cut and pasted into the decision. Consequently, decisions sometimes contain both a formal style using highfalutin officialese and a more colloquial style. One shortcoming of many decisions is that they have not been proof- read carefully enough. Survey of how the Swedish Migration Boards decisions are perceived Carrying out the survey To survey how the applicants perceive the decisions of , we approached public counsels. By interviewing a number of counsels, it was possible to identify potential difficulties appli- cants may have in reading and understanding decisions. A total of 28 interviews were conducted. The survey was carried out using a qualitative method in the form of in-depth interviews. was commissioned to conduct the interviews. The Inquiry Chair and the Inquiry Secretary visited the migration courts and the Migration Court of Appeal to find out how these higher instances perceive decisions by . We also approached other agencies, such as the Swedish and the of the Swedish Prison and Probation Ser- vice, to find out how these agencies perceive the Migration Boards decisions. How do applicants perceive the Migration Boards decisions? Our survey of how applicants – the people applying for permits, etc. – perceive the Migration Boards decisions has shown that the applicants who have public counsel are able, on the whole, to understand the decision. However, they often ask for more detailed reasons for the decision and would like to see a line of reasoning that is better adapted to their personal case and that would explain why the Migration Boards assessment has led to that particular outcome in their particular case. The formulation of the reasons for the decision is important, especially as the public counsels ability to explain to applicants what the decisive factor was is affected by how well the reasons have been expressed. If the legal reasoning is too brief, the counsels will be less able to explain to applicants what the decisive factor for was. It has also emerged that long and complex legal reasoning can be difficult to communicate to applicants. How do the higher instances and other agencies perceive the Swedish Migration Boards decisions? By and large, the migration courts and the Migration Court of Appeal have a positive view of the Swedish Migration Boards decisions. However, they think that decisions could be improved in terms of structure. The courts have also stressed the importance of well- developed reasons for the Migration Boards assessment. Expla- nations of applicable law and more general country information should have a less prominent position in favour of clearer and more detailed reasoning concerning the Migration Boards assessment of a case. The Swedish has stated that it is very important in enforce- ment cases that the Migration Boards decision clearly states the considerations concerning an applicants identity and the country to which the decision on refusal-of-entry or expulsion applies. of the Swedish Prison and did not have any specific opinions on the formulation of decisions. How can the formulation of decisions be improved? Basis for our considerations A starting point for our considerations on how the formulation of decisions could be improved was that must work actively on this to successfully improve the quality of its decisions. Therefore, our considerations mainly consist of overall recommendations for how can continue its work in this area rather than detailed proposals for what decisions should look like. There are many different recipients of decisions. The most important category of recipient by far is applicants, and the Boards decisions should therefore be formulated based on the perspective and needs of the applicants. The way in which decisions are tailored to recipients needs to be reviewed and improved, e.g. in terms of the information included, the structure, the formulation of the reasons for the decision and the language used. The detailed formulation of decisions In our assessment, the Migration Boards efforts to improve the formulation of its decisions should cover certain specific aspects of the decisions. decisions should have a uniform visual formu- lation. This should cover the graphic formulation and also the headings, which should be consistent in terms of how the different heading levels are marked and how the headings are formulated. should also consider using more subheadings. The formulation of the operative part of decisions should be re- viewed and should draw up guidelines for how the operative part should be formulated. The structure of decisions should be reviewed. When doing this, should consider using a technique whereby the parts of the decision that are most important to the applicant are placed early on in the text. Different parts of a decision should be clearly separated so that it is obvious, for example, what is a description of the applicants information and what is the Migration Boards analysis of the information. should strive to make the language in decisions cultivated, simple, comprehensible and tailored to the recipient. This requires the linguistic style to be simpler and easier to understand than is currently the case. Where technical terms cannot be avoided, their meaning should be explained. We consider that the applicants name should be used in the decision. This is more appropriate than addressing the applicant directly with the word you in a decision. One step towards tailoring decisions to recipients is to only include in a decision the text that is intended for the main recipient, i.e. This is particularly clear concerning descriptions of applicable law. When writing decisions, should consider giving only a brief description of the legislation that is relevant to the case and creating an annex to the decision containing the current legal provisions in their entirety. The legal reasoning in decisions should be a high priority in the Migration Boards continued work on formulating decisions. The reasons for the Migration Boards assessment in a case should be stated clearly, and the reasons for the decision should give the appli- cant an answer to the question: Why was this the outcome? The legal reasoning should be the focus of the decision, and both the childrens perspective and the way in which the country informa- tion was dealt with should be clearer in decisions. should draw up clear guidelines for how decisions are to be formulated in cases concerning several appli- cants who, in one way or another, are dealt with together. In our view, such cases should be determined with a decision covering all the applicants. Exceptions must be made in cases where secrecy applies between the applicants. The Migration Boards continued work on improving its decisions One prerequisite for to successfully improve the quality of its decisions is that it works actively on these issues. is best placed to determine the forms this work should take. Certain key points are especially important in this change process. staff who write decisions should receive training in this. is already working on developing training for those concerned and this should continue. This training should be obligatory for staff who write decisions. decisions are often written using different templates and the Board is working on a new system for using templates. This work should continue and should consider whether the initiative to create new or revised templates could come from the language adviser at . Language planning matters should be a priority for . These matters should be given higher status within the organisation than currently appears to be the case. One way of achieving this is to place language planning high up in the Migration Boards organisational structure. One method for streamlining decision-writing is to produce common guidelines for the formulation of decisions. Rapporteurs who produce proposals for decisions should be able to comply with these guidelines and not tailor decisions to suit individual decision makers wishes. Irrespective of how chooses to organise efforts to improve the formulation of decisions, this work must be pursued systematically over time. The change process should be managed in a permanent structure and not in project form. Quality improvement is a continuous process and should regularly investigate how the formulation of decisions affects applicants ability to understand decisions. Applicants often do not have a command of Swedish and there- fore require help to understand decisions. Regarding applicants ability to understand decisions, we consider that two key factors are of primary importance: how applicants are informed about decisions and how interpretation works. In its efforts to improve the formulation of decisions, should consider these matters too. Are additional measures needed to improve the formulation of judgments and decisions of the migration courts and the Migration Court of Appeal? The courts that decide on migration cases are all actively involved in improving the formulation of their judgments and decisions. These courts, just like any other courts in , must report on their work to the no later than . Not until the current work has been completed, reported and evaluated will it be possible to determine how this work should continue. Our considerations concerning decisions do not, therefore, call for any change in the work on judgment writing currently under way at the migration courts and the Migration Court of Appeal. However, many of the linguistic viewpoints we have presented concerning the formulation of Migra- tion Board decisions can also be applied to how the courts write their judgments. Yet for the courts, we have first and foremost drawn attention to one issue, namely that there are differences in how the migration courts apply secrecy rules. This means that different judgment- writing techniques are used. However, the problem does not primarily concern judgment writing. We have therefore concluded that the issue does not fall within the framework of our terms of reference. We have highlighted the issue but not submitted any proposals in this regard. 1 Vårt uppdrag och arbete Regeringen tillkallade genom beslut en särskild utredare för att se över utformningen av beslut och domar inom migrationsområdet. I vårt uppdrag ingår enligt direktiven att kartlägga hur Migrations- verkets beslut i migrationsärenden är utformade samt hur enskilda parter, överinstanser och andra myndigheter uppfattar besluten. Mot bakgrund av kartläggningen ska vi ge förslag till hur utformningen av beslut kan utvecklas. Med utgångspunkt från kartläggningen och förslagen beträffande beslut, ska vi ta ställning till om det finns anledning att utöver det arbete som inletts utveckla hur migrationsdomstolarnas domar och beslut utformas. Utredningen ska presenteras på ett sådant sätt att resultaten däri kan ligga till grund för och Domstolars fortsatta arbete med dessa frågor. Våra utredningsdirektiv (dir. 2012:17 och dir. 2013:13) återges i sin helhet i bilaga 1 och 2. Vårt arbete påbörjades och vi höll vårt första samman- träde . Därefter har vi haft ytterligare fyra sammanträden. Uppdraget att kartlägga hur beslut är utformade har vi tagit oss an genom att begära in 50 beslut från Migrations- verket. Utredningens jurister har granskat och analyserat besluten, med fokus på den juridiska argumentationen i besluten. Som under- lag för granskningen har vi utformat en kriterielista med viktiga hållpunkter för bedömningen, såsom yttre formulering, struktur, anpassning till adressat, innehåll och språklig utformning. Vårt uppdrag och arbete ningens språkexpert har granskat samma 50 beslut utifrån ett begriplighetsperspektiv. har sammanställt sitt arbete i en särskild rapport, som utgör bilaga 3. För att kartlägga hur enskilda parter uppfattar beslut har vi, med bistånd från , genomfört en intervjuundersökning med personer som är verksamma som offent- liga biträden vid . Intervjuerna har på vårt uppdrag utförts av . Intervjuresul- taten redovisas i en rapport, se bilaga 4. Den särskilde utredaren och utredningens sekreterare har be- sökt förvaltningsrätterna i , och , som samtliga är migrationsdomstolar, samt Kammarrätten i , Migrationsöverdomstolen. Vid dessa besök har vi informerat oss om hur man i domstolarna ser på beslut och kartlagt hur dessa överinstanser uppfattar beslut. Genom mötena med domstolarna har vi också tagit del av det arbete som domstolarna bedriver med domskrivningsfrågor. Den särskilde utredaren har närvarat vid ett seminarium om domskriv- ning, anordnat av migrationsavdelningen vid Förvaltningsrätten i . Vi har haft kontakt med Kriminalvårdens transporttjänst och polisen, genom , och därigenom kartlagt hur dessa myndigheter uppfattar beslut. kommuner är i olika sammanhang mottagare av beslut. För att få veta mer om hur man från kommunalt håll uppfattar Migrations- verkets beslut har vi haft kontakt med företrädare för Kommuner och Landsting. Under utredningens gång har vi haft omfattande kontakter med . Vi har bl.a. träffat såväl generaldirektören som den tidigare och den nuvarande rättschefen. För att få veta mer om språkvårdsarbete och utbildning i beslutsskrivande har vi haft kontakt med språkvårdare och träffat medarbetare vid verket som arbetar med utbildningsfrågor. Vi har intervjuat mottagningshandläggare, som arbetar eller har arbetat med att underrätta sökande om beslut.