Differential treatment of specific nationalities in the procedure

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Afghanistan

The largest group of asylum seekers in 2022 were Afghans, with a total of 7,054 applicants. Out of them, 19% were granted asylum at first instance, while 79% received temporary admission.[1]

Due to the events in Afghanistan in the second half of 2021,[2] the SEM did not enforce deportations as of April 2022.[3] On 15 February 2022, the SEM released a report on the potential risk profiles for being targeted by the Taliban.[4] Anyone who is persecuted in a way that is relevant under refugee law is granted asylum. Those who do not meet these requirements are usually granted temporary admission. If there is an application for re-examination or if the case is pending before the Federal Administrative Court, the SEM generally orders temporary admission.

The practice and jurisprudence on Afghani asylum applications remains quite restrictive. For instance, according to the administration and the Courts, there’s no risk of forced recruitment of underage soldiers by the Taliban, throughout the country. While the ‘safety net’ of temporary admission allows the authorities to provide some protection to most of the Afghanis coming to Switzerland, this status is not as comprehensive and solid as the refugee status.

Türkiye

In 2022, with 4,791 applications lodged by Turkish nationals, they were the second largest group of asylum seekers in Switzerland. The recognition rate at first instance (asylum status) reached 82% of all the decisions rendered on the merits while 6% were given a temporary admission status. [5]

In a principle judgment regarding exclusion from asylum released on 25 September 2018,[6] the Federal Administrative Court excluded a Kurdish refugee from asylum status for supposed proximity to Komalen Ciwan, an organisation considered as affiliated to PKK. The presumption of proximity to that organisation was considered as sufficient by the Federal Administrative Court to suspect that the applicant endangered Switzerland’s internal or external security. The decision raises many questions notably concerning freedom of expression as well the standard of proof and the burden of proof in cases of suspected links to terrorist organisations or violent extremism. It calls into question the notion of refugee protection as such insofar as the latter aims precisely to protect persons persecuted for their political opinion.[7]

In 2019, the Court stated in several judgments that the situation in Türkiye had deteriorated with regard to the political and human rights situation, especially in the southeast of the country.[8] Conversely, in a judgment of November 2019, the Court ruled that Turkish authorities can be considered as willing and able to protect victims of gender specific persecution.[9]

Eritrea

In 2022, Eritrea was the third largest group of asylum seekers in Switzerland with 1,830 applications lodged. The recognition rate at first instance (asylum status) reached 72% of all the decisions rendered on the merits while 19% were given a temporary admission status.[10]

Primary applications refer to applications lodged directly by Eritrean applicants in Switzerland, while secondary applications refer to applications lodged following family reunification procedure, subsequent applications as well as children born in Switzerland to refugee or asylum seekers’ parents. The above figures demonstrate that the number of new applications lodged by Eritreans is very low, representing 11% of asylum applications in 2019, 10% in 2020, 19% in 2021 and 7% in 2022. The high proportion of such secondary applications clearly increases the protection rate in a way that is misleading. In fact, according to the statistics, the protection rate (asylum status) was 71% and the temporary admission rate was 21% in 2021 (see the statistical table at the beginning of this report), but few people have been granted protection upon a primary application (no detailed data available).

In June 2016, the SEM changed its policy regarding Eritrea. It stated that persons who left Eritrea illegally and had previously never been called to the military service, exempted from military service, or released from military service, would no longer be recognised as refugees. In January 2017, the Federal Administrative Court also changed its practice and ruled that the illegal exit of Eritrea could no longer, in itself, justify recognition of refugee status and that additional individual elements were required.[12] Confirming this more restrictive approach, the Court subsequently found in August 2017 that the return of Eritrean nationals could not be generally considered unreasonable. Stating that the situation in Eritrea had improved significantly since 2005, the Court considered that persons whose asylum request was rejected and who had already done their military service as well as those who had “settled” their situation with the Eritrean State or benefited from the status of so-called “diaspora member” were not under the threat of being convicted or recruited to the national service and that there was no obstacle to the execution of removal under national law (art. 83 al. 3 FNA) and international law (art. 3 CEDH).[13] In a third leading decision, the Federal Administrative Court stated that there was no issue with non-refoulement (under Article 3 and/or 4 ECHR) nor any obstacle to the execution of removals in national law[14] for persons who have to serve in national service.[15] However, if the applicant succeeds in making it highly probable that he would personally be subjected to ill-treatment (contrary to Art. 3 ECHR) or poor living conditions (contrary to Art. 4 ECHR), during military service, then his removal would be unlawful.[16] Also, all this does not preclude the need to examine whether the asylum seeker left Eritrea illegally and if so, whether he has additional factors that could put him at risk of persecution if returned (as mentioned above).[17] Finally, according to the reference decision[18] of the Court, the enforcement of removal to Eritrea is generally reasonably required, except in the presence of particularly unfavourable individual circumstances in which an existential threat (or state of necessity) must be admitted. This has to be verified in each individual case and concerns in particular: single men who left Eritrea a long time ago and without a solid family network (decision D-8182/2015 of December 13 2019) and single or unmarried women with an illegitimate child, without school education and work experience and without a solid family network.[19]

Between 2018 and 2020, the SEM examined and reviewed the temporary admission of 3,400 Eritrean nationals, concluding that removal was reasonable and revoking temporary admission status in 83 cases (2.4%). In October 2020, the Federal Administrative Court clarified that revocation of temporary admission after such review required an examination of proportionality taking into account the degree of integration of the person concerned.[20] As of January 2023, 67 revocations have become legally effective. Five appeals were upheld by the Federal Administrative Court. In nine cases, the SEM annulled the revocation of provisional admission during the appeal proceedings before the Court. In two cases, the SEM annulled the revocation of the provisional admission after the referral back by the Court. One appeal is still pending. The termination of a provisional admission is possible at any time according to the criteria pursuant to Art. 84 AIG. However, a specific review in the case of Eritrean nationals does not currently take place.[21]

In December 2018, the UN Committee against Torture ruled that the expulsion of an Eritrean national would constitute a violation of Article 3 of the Convention.[22] Following a negative decision taken by the SEM, the Federal Administrative Court had declared the appeal doomed to failure though a single-judge procedure. It had thus required the payment of an advance fee of 600 CHF despite the claimant’s proven indigence. The Committee considered that the examination carried out under this procedure was anticipated and summary, whereas the complainant’s allegations were plausible, particularly in view of the disastrous human rights situation in Eritrea. It found that the requirement of procedural costs had prevented the applicant from having the possibility to see his appeal examined on the merits by the Federal Administrative Court. It therefore concluded that a removal to Eritrea would constitute a violation of Article 3 and ordered the Swiss authorities to maintain the suspension of the removal to Eritrea and to reassess the claimant’s asylum application.[23]

Algeria

The fourth largest group of asylum seekers in Switzerland in 2022 were persons from Algeria. There were 1,362 asylum applications, but only 7 persons were granted asylum, 6 persons received a temporary admission. The rejection rate stayed very high at 95% (in merit decisions).

Syria

Syrians were the fifth largest group of asylum seekers in Switzerland in 2022, with a total of 1,252 applications for international protection lodged. The recognition rate at first instance (asylum status) was 59% and the temporary admission rate was 36% in 2022.

In February 2015, the Federal Administrative Court issued two leading cases regarding Syria. They are still valid today, in light of current jurisprudence and practice. In the first judgment, the Court stated that considering the current circumstances in Syria, army deserters and conscientious objectors can risk persecution, provided they have made themselves known as opponents to the regime. The Court also denied an internal flight alternative for the applicant (of Kurdish origin) in the Kurdish-controlled area, due to the instability of the region.[24] In a second judgment, the Court stated that even ordinary participants in demonstrations in Syria against the regime risk persecution if they have been identified by Syrian state security forces.[25] It must be added, though, that jurisprudence is very strict when it comes down to assessing whether the applicant could have really been identified by the security services. Regarding the forced recruiting of persons by the Kurdish group YPG, the Court stated that this did not amount to a justified fear of persecution.[26] The Federal Administrative Court does not consider removals to Syria always unlawful. In a case published in 2021, for instance, the judges considered that the applicant, who had been sentenced to a long term of imprisonment for serious crimes, could return to Aleppo, given that the situation was ‘stable’ since 2016.[27]

In July 2022[28] the Federal Administrative Court reviewed its practice on the consequences of an illegal departure due to increasing documentation of the experiences of Syrian returnees. It considered that a re-entry into Syria requires a status settlement in a formal procedure in order to obtain a “security clearance”. This could be refused for various reasons (e.g. because of detained family members, oppositional statements on social media or a stay in an “unpopular” country). The Court explains that the status settlement is particularly necessary for persons who had left the country illegally, had refused military service or had applied for asylum abroad. If the Syrian state agreed to the status settlement, the persons concerned would be removed from the list of wanted persons. However, in individual cases, persons who had settled their status could also be arrested. Overall, however, the Court saw no justification for changing the current case law on illegal departure: Although the return after an illegal departure could prove problematic in individual cases despite status settlement and result in disadvantages, it did not conclude it to be a systematic, nationwide action against returnees from European countries. The requirement of “overwhelming probability” of future persecution was therefore lacking. Illegal departure alone would therefore still not lead to the assumption of refugee status.

Concerning resettlement, the Federal Council decided to resettle 1,600 particularly vulnerable recognised refugees for the years 2020-2021, mainly victims of the Syrian conflict.[29] In 2022, 436 refugees from Syria were resettled to Switzerland (compared to 1,009 in 2019,512 in 2020 and 434 in 2021).[30]

Other nationalities

Sri Lanka (471 asylum applications in 2022): In July 2016, the Federal Administrative Court updated its case law by considering that the enforcement of removals to the northern (apart from the Vanni) and eastern provinces of the country was, in principle and under certain conditions, reasonable.[31] Subsequently, the Court restricted its stance further through a principle judgment released in October 2017.[32] The Court argued that since the end of the conflict in 2009, the security situation had improved significantly in the Vanni region. As a result, it considered that a person with a sustainable network of relationships and the possibility of securing the minimum existence level with time should be able “to resettle there without undue difficulty”.[33] Regarding vulnerable profiles such as single women with or without children, persons with serious health issues or elderly, the Court concluded that the execution of the removal remained unreasonable. This case law continues to be applied.[34] However, there is case law showing that the Court’s view on the return of applicants with health issues differ.[35] In February 2020 and July 2021, the SEM published an Update on the situation in Sri Lanka, that did not lead to any fundamental change.[36] Likewise, the political and economic crisis in 2021 and 2022 did not have a significant impact on the practice of the SEM and the Court, namely with regard to their effects on health care.[37] The court only assumed in few individual cases[38] that the recent events in Sri Lanka had to be taken into account and the extent to which the health system was still functioning had to be examined.

Iraq (504 asylum applications in 2022): Since the Court’s position of December 2015 according to which there is no situation of generalised violence in the northern Kurdish provinces, persons can be returned there if they have a sustainable social or family network there.[39] Persons from central and southern Iraq usually receive a form of protection. As of 2022, the practice concerning Kurdish provinces remained the same.

Iran (551 asylum applications in 2022): The Federal Administrative Court recognises in its jurisprudence that people who express themselves critically of the regime, especially in social media, are increasingly subject to mass reprisals. Nevertheless, Swiss practice grants asylum only to those whose engagement goes beyond typical mass activities and who are therefore perceived by the regime as serious and dangerous opponents. With regard to conversion to Christianity, Swiss practice considers that only those who are active in their church or who engage in proselytism face an increased risk of persecution. In October 2022, the Court confirmed its jurisprudence that the Bahai in Iran are subject to collective persecution: The faith is not recognised as a religion and its followers are systematically persecuted.[40] Unbearable psychological pressure in the event of return is only admitted in the case of missionary activity by the applicant. In other cases, it is accepted that Iranian nationals may exercise their Christian faith privately.[41] Regarding domestic violence, case law has significantly improved since 2021, when the Federal Administrative Court recognised that state authorities are not willing to provide effective protection for women who are victims of violence.[42] On request regarding the current situation in Iran since September 2022, the SEM stated that they are currently collecting information from various sources in order to examine whether the practice needs to be adjusted.[43]

Ethiopia (230 asylum applications in 2022): The practice towards Ethiopian asylum seekers has become more and more restrictive since the election of President Abiy Ahmed in 2018. Despite several reports of violence and violations of human rights, the Federal Administrative Court considers the situation as having significantly improved and such violations of human rights as “an outgrowth of the democratisation process that has been initiated”.[44] In January 2019, Switzerland concluded an agreement with Ethiopia on the repatriation of applicants from Ethiopia who have received a negative asylum decision.[45] The planned agreement between Switzerland and Ethiopia provides close cooperation with the Ethiopian secret services. The latter would be responsible for identifying the asylum seekers concerned.[46] According to SEM’s statistics,[47] no removal took place in 2022 (compared to 8 in 2020).[48] Despite the conflict in Tigray, the Court considers that there is no widespread violence in the whole of Ethiopia that could justify ineligibility for removal. The question, then, of whether the Court recognises a war or widespread violence in the Tigray region in particular is not entirely clear. In its jurisprudence, there are elements in favour of recognition, as well as elements against. On the one hand, in several of its judgments, it mentions, with reference to Tigray, war, humanitarian crisis, serious conflicts between the central Ethiopian government and the TPLF, ethnic tensions and protest movements, or the exceptional situation in Tigray, so that its jurisprudence must be put into perspective for this region. But on the other hand, other judgments state that the enforcement of removal in all regions of Ethiopia is reasonably required. And there are no cases in which it clearly recognises the ineligibility of removal to the Tigray region because of the conflict situation there.

On a practical level, the SEM communicated to the media that it would no longer carry out removals to Ethiopia of asylum seekers from Tigray since November 2020 and that since December 2021, it has suspended all removals to Ethiopia until further notice.

Tibet: Regarding applicants from Tibet, very often the SEM does not believe that they have been brought up in Tibet (China) but considers them as having been socialised in exile communities in India or Nepal. Due to alleged failure to comply with the asylum procedure, their claims are rejected without further investigations. To assess their place of socialisation, SEM uses country experts and linguistics analyses (LINGUA-analysis). In 2020, an asylum seeker who claimed to have been socialised in Tibet had been considered not credible following the LINGUA-analysis. However, independent experts argued that the LINGUA-Analysis by a specific analyst appointed by the SEM had not been conducted in a professional way and therefore was not reliable.[49] In 2021, about 240 Tibetans lived in Switzerland without regular status.

[1] SEM, asylum statistics (7-20), available at: https://bit.ly/418U0Yk.

[2] The situation before the Taliban takeover was as follows: Returns to Afghanistan were generally considered unreasonable (meaning temporary admission was granted), with three exceptions: returns to the cities of Kabul, Mazar-i-Sharif and Herat were considered reasonable if certain conditions were met in the individual case, mainly a family or social network. Federal Administrative Court, Decisions D-7950/2009, 30 December 2011 (Mazar-i-Sharif); D-2312/2009, 28 October 2011 (Herat); ATAF 2011/7, 16 June 2011 (Afghanistan in general and Kabul); D-5800/2016, 13 October 2017, (Kabul); Reference Decision D-4287/2018, 8 February 2019 (Mazar-i-Sharif); Decision D-4705/2016, 14 June 2021 (Herat).

[3] For case law and practice prior to the Taliban takeover in August 2021, see previous updates of the AIDA Country Report Switzerland, available at: https://bit.ly/406fqpx.

[4] Available in German at: https://bit.ly/3iFylGR.

[5] SEM, asylum statistics (7-20), available at: https://bit.ly/418U0Yk.

[6] Federal Administrative Court, Decision E-2412/2014, 25 September 2018.

[7] For further information, see Swiss Refugee Council, L’arrêt sur les Kurdes ébranle les fondements du droit d’asil’, 5 October 2018, available (in French) at: http://bit.ly/3XUkgVm.

[8] Example: Federal Administrative Court, Decision E-1625/2017, 24 January 2019.

[9] Federal Administrative Court, Decision E-5920/2019, 21 November 2019.

[10] SEM, asylum statistics (7-20), available at: https://bit.ly/418U0Yk.

[11] SEM, asylum statistics (7-21), available at: https://bit.ly/418U0Yk.

[12] Federal Administrative Court, Decision D-7898, 30 January 2017.

[13] Federal Administrative Court, Decision D-2311/2016, 29 August 2017.

[14] Federal Administrative Court, Decision D-2311/2016, 29 August 2017.

[15] Federal Administrative Court, Decision E-5022/2017, 10 July 2018. This practice change has been criticised by the Swiss Refugee Council and others, as it does not seem justified by the current country of origin information (COI) or the difficulty to obtain reliable COI.For further information, see Swiss Refugee Council, Décision du Tribunal administratif concernant le renvoi d’une Erythréenne – Le jugement est incomprehensible, 31 August 2017, available in French at: http://bit.ly/3wC6SJQ; ‘La Confédération mise sur l’intimidation plutôt que sur des solutions’, 3 September 2018, available (in French) at: http://bit.ly/3Y6ruFP.

[16] ATAF 2018 VI/4.

[17] This is still in force, Federal Administrative Court, Decision D-7898/2015.

[18] Federal Administrative Court, Reference Decision D-2311/2016, 17 August 2017.

[19] Federal Administrative Court, Decisions E-686/2018, 18 March 2022 and E-2117/2017, 17 December 2019.

[20] Federal Administrative Court, Decision E-3822/2019 of 28 October 2020.

[21] Information provided by the SEM, 1 May 2023.

[22] UN Committee against Torture, CAT/C/65/D/811/2017, 17 December 2018, available at: http://bit.ly/409vA1o.

[23] See also CSDM, ‘Une décision de renvoi vers l’Érythrée prise par les autorités suisses viole la Convention contre la torture’, 19 December 2018, available (in French) at: https://bit.ly/2SoBFb6.

[24] Federal Administrative Court, Decision D-5553/2013, 18 February 2015.

[25] Federal Administrative Court, Decision D-5779/2013, 25 February 2015.

[26] Federal Administrative Court, Decision D-5329/2014, 23 June 2016.

[27] Federal Administrative Court, Decision E-1876/2019, 8 March 2021. See also: E-6023/2017, 26 June 2019;  D-1105/2017, 31 May 2017; and E-3152/2018, 22 June 2018.

[28] Federal Administrative Court, Decision E-2943/2019, 6 July 2022

[29] Information on resettlement programs available on the website of the SEM, at: https://bit.ly/3padRU2.

[30] SEM, asylum statistics (7-20), available at: https://bit.ly/418U0Yk.

[31] Federal Administrative Court, Decision E-1866/2015, 15 July 2016.

[32] Federal Administrative Court, Decision D-2619/2016, 16 October 2017.

[33] The Swiss Refugee Council expressed strong reservations concerning the evaluation made by the Court regarding the security situation in the northern part of Sri Lanka, especially in the Vanni’s region. Indeed, this appreciation is mostly based on a UNHCR’s survey of 113 families who returned voluntarily from India to the northern part of the country. Therefore, it appears that the evaluation made does not rest on a detailed analysis. For further information see: Swiss Refugee Council, Curieux sondages et requérant-e-s d’asile du Sri Lanka, 14 December 2017, available in French (and German) at: https://bit.ly/3ILLwiw.

[34] Federal Administrative Court, Decision D-3257/2022, 16 November 2022.

[35] Federal Administrative Court, Decision, D-5268/2019, 15 February 2022, compared to Decision, D-319/2020, 22 December 2022.

[36] Available in German at: https://bit.ly/3GJcFR4 and https://bit.ly/3XsbXjp.

[39] Federal Administrative Court, Decision E-3737/2015, 14 December 2015, confirmed in Decision E-86/2017, 7 November 2018.

[40] Federal Administrative Court, Decision D-1197/2020, 25 October 2022.

[41] See for example Federal Administrative Court, Decision D-2344/2020, 9 February 2022, para 6.3.3.

[42] Federal Administrative Court, Decision E-2470/2020, 26 January 2021, para 6.7.1.

[43] Information provided by the SEM, January 2023.

[44] See for example, Federal Administrative Court, Decision D-1759/2018, 7 August 2020, para 5.1 and D-1842/2020, 21 July 2020, para 6.1.

[45] SEM, La Suisse et l’Éthiopie règlent leur collaboration dans le domaine du retour, 16 January 2019, available (in French) at: https://bit.ly/2SoLndI. 

[46] For further information see Swiss Refugee Council, Éthiopie: est-il vraiment urgent de renvoyer les demandeurs d’asile déboutés?, 5 December 2018, available in French at: http://bit.ly/3kDx5Vo.

[47] SEM, asylum statistics (7-30), available at: https://bit.ly/418U0Yk.

[48] On 27 January 2021, the SEM deported 3 Ethiopian rejected asylum seekers on a special flight to Addis Abeba; see for example media report by Le Temps, available at: https://bit.ly/2OjX2cs.

[49] See the News of the Swiss Refugee Council, Vives critiques d’experts sur les analyses de provenance concernant le Tibet, 2 November 2020, available in French (and German) at: https://bit.ly/3ImQPpF.