The Swedish Migration Court of Appeal position on the principle of the best interests of the child. A qualitative content analysis on how the principle of the best interests of the child is interpreted after the Swedish incorporation of the Convention on the Rights of the Child.

Abstract

As of 2020, the Convention on the Rights of the Child (CRC) was incorporated into Swedish law. The Swedish media has since then reported about the lack of consideration for children's rights in the Swedish migration process. Later the same year of the incorporation, the Swedish Migration Court of Appeal's made precedent judgement regarding the principle of the best interests of the child in a migration case. The case concerns a 14 -year-old child who has been in Sweden fo a long time. According to the Swedish Migration Agency, the child would be deported with her parents because the family was outstaying their visa. Despite this, the Swedish Migration Court of Appeal emphasized in accordance with the principle of the best interests of the child, to allow the child and parents to stay in Sweden. In the Court’s judgement of the case a balance of interests was made where the Court decided that the child should stay due to the child's long stay and connection to Sweden. The Court referred to the Committee of the Rights of the Children's general comment where it gives guidance in how to interpret the principle. For this study, a qualitative content analysis has been made to examine the Swedish Migration Court of Appeal's precedent judgment and the Committee of the Rights of the Children's general comment concerning the principle of the best interests of the child. Previous research has criticized the principle of the best interests of the child for being too general and mainly the risk for children in migration processes of having their interests weighed out against the state's interests in controlled immigration. From what has been found using a qualitative content analysis has been analyzed with the chosen theoretical framework Jacqueline Bhabha taken on Hannah Arendt's political theory with focus on today's migrants' children. The results of this study have found that an incorporation of the CRC can make sure that children's rights are considered. It should be noted that there is no guarantee for all children to have the principle of the best interest of the child fully considered. Despite this, the results of this study, like previous research have shown that it is not enough to “only” incorporate an international convention in order to protect the interests and the rights of children in migration process.