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Inadequate control of public counsel in migration cases

People who risk refusal of entry or expulsion may have the right to public counsel. It is the responsibility of the State to check that the counsel are suitable. The Swedish National Audit Office (Swedish NAO) audit shows that people have been able to continue working as counsel even though they have been convicted of serious crime or excluded from the Swedish Bar Association.

Meeting between two people, blurred silhouette of a woman in the center of the picture.

Photo: Marcus Ericsson

The Swedish Migration Agency, the Swedish Police Authority and the migration courts are responsible for the handling of public counsel in migration cases. People in need of counsel are often in a vulnerable situation and it is the responsibility of the State to ensure that only suitable counsel are appointed.

The Swedish NAO has examined how administrative authorities and courts appoint legal counsel, check their suitability and manage their compensation.

The audit shows that this is efficient in most respects, but that there are exceptions that risk leading people being assigned counsel who lack sufficient legal competence or who for other reasons are unsuitable for the assignment.

One example of this happening is that the Swedish Migration Agency in 2018 excluded five counsel from further appointments because they had been convicted of serious crime or had been excluded from the Swedish Bar Association. Despite this, they continued to work as counsel during 2019–2021 and received remuneration from public authorities on more than 40 occasions.

“It is very problematic that counsel who are clearly unsuitable continue to be appointed and paid by the State. Moreover, it is not sound management of public funds,” says Auditor General Helena Lindberg.

The fact that unsuitable counsel can continue to be appointed is partly because it is unclear what information about misconduct the administrative authorities and courts may compile and share with each other. Information about circumstances that have led to a decision not to appoint therefore risks getting stuck with individual employees at each actor. In the absence of a clear regulatory framework, the actors also use various informal solutions with regard to compiling information about counsel.

“This renders part of the suitability check ineffective. Furthermore, this in turn risks having the effect that people do not receive the legal support they are entitled to,” says Lovisa Ingström, Project Leader of the audit.

The Swedish NAO notes that authorities do not consider that they are able to place as high suitability requirements on a counsel requested by an individual, as on a counsel appointed by the authority. The lack of guidance on how the free choice of counsel is to be weighed against suitability requirements on counsel contributes to the risk of unsuitable counsel being appointed.

The audit also shows that the Swedish Migration Agency has an ambition of distributing the assignments as equally as possible among the counsel in the system. This means that most counsel are assigned so few assignments that it is difficult for them to maintain and develop their competence in migration law.

Recommendations in brief

The Swedish NAO’s recommendations to the Government include the following:

  • ensure that administrative authorities and courts are given the right to compile and share the necessary information about public counsel
  • consider introducing specific suitability or eligibility requirements for public counsel in migration cases
  • examine the possibility for the Swedish Migration Agency to be able to dismiss unsuitable public counsel in general in the same way as the migration courts.

The Swedish Migration Agency, the Swedish Police Authority and the migration courts are recommended to collect relevant information about public counsel from other administrative authorities and courts for a suitability check.

See the report for full recommendations.

Press contact: Olle Castelius, phone: +46 8-5171 40 04.

Presskontakt: , telefon: 08-5171 42 06.

Updated: 15 June 2022

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