A British photographer is facing deportation from Sweden and forced separation from his 16-month-old son after authorities ruled in favour of the country’s immigration interests.
Simon Montgomery’s application to remain after the birth of his son last year was rejected on multiple grounds by the country’s migration agency, a decision that was then upheld by the migration court.
He is appealing to the higher migration court, arguing he has EU freedom of movement rights as his son is a German citizen through his mother. “I am not here because I want to be in Sweden, I am only in Sweden to be with my son,” he said.
The couple separated shortly after the child was born but Montgomery, who grew up without his father in his life, said he was determined to stick around and be there for his newborn.
The pair have legally recognised joint custody, with a parenting agreement that meant his time with his son increased as he got older and no longer needed night time breast-feeding.
He said he saw his son three days a week and took an active part in his care and daily routine with a “stable parenting plan” agreed via discussions with the municipal family law service.
He moved to Sweden after Brexit so was not entitled to any withdrawal agreement residency rights, but applied to stay on the basis he was the father of an EU citizen.
Montgomery said it was shocking that Sweden was prepared to separate a son from his father, even though the child had rights under EU law as well as international conventions. “Everything in Sweden is about the children’s right to both parents,” Montgomery said.
“But this seems to be ignoring all of that, when it comes around to immigration. Sometimes I feel like people don’t know what happens here. That’s why it’s so important to have these stories told.
“Everyone’s so friendly here; society works and things are nice. And when you tell them what’s happened, they just look shocked. They think you must have done something wrong and when I explain I have done nothing wrong they just don’t understand.” \
Montgomery said he was unable to leave the country to see elderly relatives in the UK for fear he would be blocked from returning to be with his son.
“It’s almost like torture in some ways, like having to make these decisions between staying to fulfil your parenting roles and not being able to visit my 98-year-old grandmother back in the UK and say my goodbyes.” he said.
His residency application, made when his son was six months old, was rejected last December by the migration agency on the grounds there was no evidence he had “actual care” for the child, who at that point still stayed overnight with his mother.
It also said he was free to maintain a relationship with his son from afar as he could enter the country visa-free and “still have the opportunity to visit the child in Sweden”.
He appealed against the decision but the court this month sided with the authorities, which assessed, according to the ruling, that the “state’s interest in regulated immigration outweighs your interest in the protection of your private and family life in a proportionality assessment”.
Montgomery said he was taken aback by the court’s suggestion he did not need to be in the country full time because he could visit his son by entering the country as a visitor. “Because I can come here visa-free, [they say] it shouldn’t interrupt my parenting ability. That’s crazy because I look after my son three days a week now … and overnights are about to start very soon.”
According to court papers, the decision to reject an application for residency and a simultaneous decision that he should be deported was made “primarily on the grounds that he had not demonstrated that he met the conditions for the right of residence as a family member of an EEA citizen”.
His lawyer argued that if he were “forced to leave Sweden, this would undermine the process and create instability for his son”. They added: “His son is an infant and is in a critical attachment phase where it is in his best interest to have both parents physically present and actively involved.”
They argued that the boy’s father’s presence was “particularly important” because his former German partner did not have a family network to rely on if she was sick or at appointments.
“Deportation would constitute a disproportionate interference in their family life,” they said, arguing that the lower migration court had interpreted “actual care” – evidence of a child’s relationship with a parent – “too narrowly on the grounds that the son primarily lives with his mother”.
They alleged forcibly separating a son from his father would violate article 8 of the European convention of human rights.
Montgomery is appealing the case to the higher court but said he wanted to share the story so people understood how immigration law was being implemented.
Sweden’s migration agency has been approached for comment. The German government said it could not comment on the case.