Swedish Parliamentary Ombudsman rules that the Migration Board has violated the Constitution

It is the decision of the Migration Board’s management to re-assign me from being head of unit to a lower position, because of my support for Israel in this blog, which has rendered sharp criticism by the Swedish Parliamentary Ombudsman JO in a decision made on September 25. Link to decision here (swedish).

Here follows JO’s own summary of the decision:

An employee has been transferred to a lower position. The measure is deemed to have been prompted by the employee expressing positions on political issues on the Internet. Constitutional protection for freedom of expression includes that government authorities [det allmänna] must not retaliate against individuals who have used their freedom of expression. There is no basis to make an exception from this prohibition of retaliation in this case. The transfer has therefore been a violation of the Constitution.

It was Eugène Palmér who made that unconstitutional decision. The Director General Dan Eliasson let it happen. Afterwards I became not only reassigned, but fired. Dan Eliasson also let that happen.

The Swedish Government should now, in the light of the JO’s decision, dismiss Dan Eliasson. No governmental agency should have a Director General that permits constitutional violations.

Here follows a longer quote from JO’s decision:

Eugène Palmér has not put forward any concrete reasons for his actions other than those that are rooted in that Lennart Eriksson, while he was Head of Unit at the Migration Board, outside of the service took a position in a certain way in what was judged to be politically controversial questions. Palmér apparently claims that it is not the views or their expression, that he turned against, but the lack of appreciation that Eriksson – given his position at the Migration Board – showed, by failing to restrain his personal expression of opinions. But the one thing can not be separated from the other. To say that the employee is entitled to express an opinion but not to show the bad judgment that he consider the statement to imply is simply a euphemism for a prohibition against the expression of the statement.

It is thus through the measures taken and the reasons stated for these undisputed that the Migration Board by Eugène Palmér acted against Lennart Eriksson in response to what he expressed in a context separate from the service. The Migration Board called the movement of Eriksson a reassignment. This has since in a final judgment been assessed as a dismissal and an unlawful one. As shown above, a negative change in the employment conditions of an official is a typical example of retaliation.

It remains to consider whether there was such circumstances that make the measures anyhow lawful.

In making this assessment, there is reason to dwell on what is in Mölndal district court’s ruling entered on Lennart Eriksson’s competence as a so called decision-maker. A decision-maker should, according to the what has been noted in the ruling, investigate, manage and make decisions under the Aliens Act. Eriksson was assessed by the Board to be ”a very clever” and ”extremely appropriate decision maker”, which the Board much wanted to keep just in that role. That Eugène Palmér also found Eriksson suitable as decision-maker is clear from the fact that he reassigned Eriksson to such a post. The conclusion of this can not be any other than that Eriksson was judged to have good capacity to objectively and impartially decide cases in accordance with applicable law. Palmer and the Migration Board’s view was, in other words, that Eriksson could distinguish between official duties and private views, and that there were no reason to distrust him from that point of view.

Eugène Palmér argue, however, that Lennart Eriksson’s opinions about the Middle East conflict severely damaged the public and the applicant’s faith in the Migration Board’s ability to impartially consider asylum applications from people coming from that area. No specific evidence to support this assumption has been presented. The absence of further specification may be interpreted so that what prompted the intervention lay on a more general level, namely that it generally would be detrimental to the confidence for the Immigration Service to have a head of unit who publicly expresses views of the kind Eriksson stated. A desire to preserve public confidence in an agency may not, however, as shown, be invoked in support of reprisal against an employee who made use of his private freedom of speech in a context that is completely separated from the service.

There is therefore no legally valid basis for the action Eugène Palmér decided. It was thus not only illegal according to employment law, as found in Mölndal district court’s ruling, but also unconstitutional.

Thus it is a ”typical example of retaliation”.

Links: Haaretz, The Local.

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Read also other blogger’s views on freedom of speech, Swedish Migration Board, Dan Eliasson, Eugène Palmér, JO, democracy, Israel,Swedish Government