Opinion of the Advocate General — ECLI:EU:C:2020:594
Date: 2020-07-16
Language of the case: Swedish
Subject matter: Immigration and asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Sweden

Translation C-193/19 — 1 
Case C-193/19 
Request for a preliminary ruling 
Date lodged: 
27 February 2019 
Referring court: 
Förvaltningsrätten i Malmö (Sweden) 
Date of the decision to refer: 
15 February 2019 
Applicant: 
A 
Defendant: 
Migrationsverket 
  
[OMISSIS] 
Request for a preliminary ruling under Article 267 of the Treaty on the 
Functioning of the European Union 
[OMISSIS] 
Förvaltningsrätten i Malmö, migrationsdomstolen, (Administrative Court for 
Immigration Matters, Malmö), Sixth Chamber, has [OMISSIS] decided to 
[OMISSIS] obtain a preliminary ruling from the Court of Justice of the European 
Union. 
[OMISSIS] 
Introduction 
1 A basic criterion in Swedish law, when issuing a residence permit on a ground 
other than the need for protection and humanitarian grounds in connection with a 
natural person, is that the applicant’s identity must be made clear. In those 
situations, the standard of proof required is clarified as synonymous with proof of 
identity; in practice that requires presentation of a valid passport, in force for the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 15. 2. 2019 — CASE C-193/19 
 
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period of the requested permit. The Swedish utlänningslagen (Law on Aliens; ‘the 
UL’) does not contain specific rules on identity, but does contain a requirement to 
hold a passport. 
2 Derogations have been granted in cases of family reunification, when the persons 
in question come from a country where acceptable identity documents cannot be 
presented; in practice, Somalia. 
3 The Migrationsöverdomstolen (Court of Appeal for Immigration Matters) has 
previously held that clearly proven identity when granting a temporary residence 
permit on grounds of a connection to Sweden, for example through a marriage, 
work or studies, of which the first mentioned is at issue in the present case before 
the national court, is a prerequisite for Sweden being able to fulfil its 
commitments under the Schengen Agreement and for cooperation within 
Schengen included in what is known as the Schengen Borders Code (MIG 2011: 
11). 
4 In 2016, Sweden introduced a temporary law restricting the possibility of being 
granted a residence permit in the country (Lagen [2016:752] om tillfälliga 
begränsningar av möjligheten att få uppehållstillstånd i Sverige (Law [2016:752] 
on temporary restrictions on the possibility of obtaining a residence permit in 
Sweden; ‘the temporary law’). 
5 [Or. 2] A provision has now been incorporated into that law (Paragraph 16(f)) 
which allows persons who intend to study at a Swedish upper secondary school to 
be granted a temporary residence permit. One requirement among many others is 
that the person has received a final decision refusing an application for asylum 
with an expulsion order attached to the relevant refusal. The provision concerned 
also contains a specific derogation from the abovementioned requirement of proof 
of identity that otherwise applies; that does indeed concern a permit for studies of 
a limited duration. In addition, the applications must be submitted in Sweden. 
Such permits are otherwise to be requested and granted before entry into Sweden. 
6 The provision is worded as follows: a residence permit may be granted even if the 
alien’s identity is unclear or he or she is unable to provide prima facie evidence of 
his or her identity. 
7 The förvaltningsrätten i Stockholm, migrationsdomstolen (Administrative Court 
for Immigration Matters, Stockholm) has [OMISSIS] has held that provisions of 
EU law (the Schengen Borders Code and Regulation (EU) No 265/2010 of the 
European Parliament and of the Council of 25 March 2010 amending the 
Convention Implementing the Schengen Agreement and Regulation (EC) 
No 562/2006 as regards movement of persons with a long-stay visa), which are 
binding on Sweden, prevent application of the abovementioned lower standard of 
proof of identity and that instead the normal practice of proven identity is to 
apply. 
 A 
 
3 
8 The Kammarrätten i Stockholm, Migrationsöverdomstolen (Administrative Court 
of Appeal for Immigration Matters, Stockholm) has since [OMISSIS] held that the 
principles established in the abovementioned case MIG 2011:11 concerns 
applications submitted from outside Sweden (therefore also obviously from 
outside the Schengen area) and amended the decision of the migrationsdomstolen 
(Court for Immigration Matters) in such a way that the lower burden of proof 
referred to above was admitted. 
9 It is thus unclear what level of required proof of identity under the EU law 
provisions set out above (paragraph 3 and paragraph 7) applies to applications 
made in Sweden on a ground other than the need for protection and humanitarian 
grounds concerning an individual. 
The reasons for the court’s query as to how the provisions of EU law are to 
be interpreted in the present case 
Provisions of EU law 
10 In accordance with recital 6 of the Schengen Borders Code, border control is in 
the interest not only of the Member State at whose external borders it is carried 
out, but of all Member States which have abolished internal border control. Border 
control should help to combat illegal immigration and trafficking in human beings 
and to prevent any threat to the Member States’ internal security, public policy, 
public health and international relations. 
11 Article 5(1) of the Code provides that a third-country national must be in 
possession of a valid travel document entitling the holder to cross the border and 
must not be a person for whom an alert has been issued in the Schengen 
Information System (SIS) for the purposes of refusing entry. The same article 
further provides that a Member State may authorise a third-country national who 
does not fulfil the conditions laid down to enter its territory on humanitarian 
grounds, on grounds of national interest or because of international obligations. 
12 Article 7(3) states that third-country nationals are to be subject to thorough checks 
on entry and exit and that a thorough check is to be carried out to establish 
whether the third-country national has a document which is valid for crossing the 
border and which has not expired, and that the document is accompanied, where 
applicable, by the requisite visa or residence permit. 
13 [Or. 3] Article 13(1) provides, inter alia, that a third-country national who does 
not fulfil all the entry conditions is to be refused entry to the territories of the 
Member States. This shall be without prejudice to the application of special 
provisions concerning the right of asylum and to international protection or the 
issue of long-stay visas. 
14 Under Article 6(4) of the Return Directive (Directive 2008/115/EC of the 
European Parliament and of the Council of 16 December 2008 on common 
REQUEST FOR A PRELIMINARY RULING OF 15. 2. 2019 — CASE C-193/19 
 
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standards and procedures for returning illegally staying third-country nationals) 
Member States may, at any time, for compassionate, humanitarian or other 
reasons, decide to grant an autonomous residence permit or other form of 
authorisation offering a right to stay in the country to a third-country national 
staying illegally on their territory. In such cases, no return decision is to be issued. 
Where a return decision has already been issued, it is to be withdrawn or 
suspended for the duration of validity of the residence permit or other 
authorisation offering a right to stay. 
15 Under Article 25(1) of the Schengen Agreement, where a Member State considers 
issuing a residence permit, it is systematically to carry out a search in the 
SIS. Where a Member State is to decide whether to issue a residence permit to an 
alien for whom an alert has been issued for the purposes of refusing entry, it is 
first to consult the Member State issuing the alert and is to take account of that 
Member State’s interests, and the residence permit is to be issued in exceptional 
cases only, notably on humanitarian grounds or by reason of international 
commitments. 
Relevant national provisions applicable in the case before the referring court 
16 Chapter 5, Paragraph 3, first subparagraph, points 1 and 8 of the utlänningslagen 
(2005:716) (Law (2005:716) on aliens; ‘the UL’) and Chapter 5, Paragraph 16, 
first and second subparagraphs of that law concerning the right to a residence 
permit. Chapter 2, Paragraph 1, of the [UL] and Chapter 2, Paragraph 1, of the 
utlänningsförordningen (2006:97) (Ordinance (2006:97) on aliens; ‘the UF’) 
concerning the requirement to hold a valid passport. There are no provisions on 
the requirement for proven identity in the [UL]. There is, however, a provision on 
identity in the temporary law referred to above. 
The need for clarification from the Court of Justice 
17 In the present case, a person under the name A, born on 81-11-11 and a Gambian 
national, was granted a residence permit based on his connection to his wife (a 
Swedish national). 
18 That application was lodged and granted before his entry into Sweden. His 
identity may be deemed to have been proven at the time and he showed a home 
country passport, which must also have been deemed to meet the requirements 
which may be laid down in respect of such a passport in that situation. 
19 The man is now seeking an extension to his permit on the same grounds (the man 
is in Sweden). When the application for extension was made, the following 
information of interest emerged. The Police in Norway provided information that 
the man had been held in detention in Norway. Information was also received that 
the person in question used a number of aliases in Norway. He was known there, 
in part, as B, born on 18.08.75, citizen of The Gambia (under a false passport) and 
 A 
 
5 
in part as C, born on 12.12.82 (asylum seeker without a passport). In a search in 
Norway, another passport (passport No PC239064) was found, bearing the 
identification D, born on 08.08.80, also a citizen of The Gambia. Further, an 
application for a residence permit in Sweden was previously registered in the 
name of D, born on 08.08.80, a Gambian national (passport No PC239064). The 
application was made from Dakar. The application was rejected since it involved a 
marriage of convenience. 
20 [Or. 4] Finally, it should be noted that Norway expelled D for life and registered 
him under that name, with the date of birth of 08.08.80, as a Gambian citizen, in 
SIS. Lastly, it is noted that the man in Norway under the latter name was 
convicted of the possession and sale of drugs (cocaine) and sentenced to a prison 
term of 120 days. 
21 The Migrationsverket rejected the current application essentially on the ground 
that his identity has not been made clear. 
22 The Migrationsdomstolen (Court for Immigration Matters) considers, in the light 
of the foregoing, that it is necessary to request the Court to give a preliminary 
ruling pursuant to Article 267 of the Treaty on the Functioning of the European 
Union concerning the interpretation of whether EU law requires proof of identity 
for the grant of applications lodged in Sweden which are not based on grounds of 
protection or humanitarian grounds.  
[Or. 5] Questions to the Court of Justice of the European Union 
1. Do the provisions of the Schengen Convention, including, in 
particular, the provisions on the systematic consultation of the SIS and 
the Schengen Borders Code and including, in particular, the 
requirement to hold a valid passport laid down therein, constitute 
obstacles to the grant of residence permits on the basis of applications 
which were submitted in Sweden and which are not based on grounds 
of protection or humanitarian grounds, when the identity is unclear? 
2. If that is the case, can the exception on establishment of identity be 
governed by national law or by case-law? 
3. If the situation described in paragraph 2 above is not the case, what, if 
any, derogation is provided for in EU law? 
Malmö, 15 February 2019. 
[OMISSIS] 
[Or. 6] Parties to the main proceedings [OMISSIS] 
Applicant: 
REQUEST FOR A PRELIMINARY RULING OF 15. 2. 2019 — CASE C-193/19 
 
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A 
[OMISSIS] 
Defendant 
Migrationsverket 
Sweden 
[OMISSIS]