Differential treatment of specific nationalities in the procedure

Switzerland

Country Report: Differential treatment of specific nationalities in the procedure Last updated: 14/05/21

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Eritrea

 

 

In 2019, Eritrea was the top country of origin with 2,899 applications lodged. The recognition rate (asylum status) was 67% and the temporary admission rate was 17% in 2019. 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, will 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 cannot anymore, in itself, justify the recognition of refugee status and that additional individual elements are required.[1] Confirming a more restrictive approach regarding Eritrean cases, the Court subsequently found, in August 2017, that the return of Eritrean nationals could not be generally considered as unreasonable. Thus, noting that the situation in Eritrea has improved significantly since 2005, the Court estimated that persons whose asylum request was rejected and who have already done their military service as well as those who “settled” their situation with the Eritrean State and benefit 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.[2] In a third leading decision, the Federal Administrative Court stated that there was no interdiction of refoulement (due to art. 3 and/or 4 ECHR) nor an obstacle to the execution of removal in national law[3] for persons who have to serve in national service.[4] Following these recent changes, in spring 2018, the SEM started to re-examine the status of approximately 3,000 Eritreans already granted temporary admission (as foreigners, without refugee status) according to this case law. Until September 2018, they examined 250 cases and found the temporary admission to be no longer valid in 9% of these cases.[5] As of end of October 2019, SEM found the temporary admission no longer to be valid in 82 cases (2.7%).[6] Most of the appeals submitted against such decisions have been rejected by the Federal Administrative Court, some are still pending. 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.[7]

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.[8] Following a negative decision taken by the SEM, the Federal Administrative Court had declared the appeal filed doomed to failure, by 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.[9]

 

Syria

 

With 1,100 asylum requests in 2019, Syrians were the fourth largest group of asylum seekers in Switzerland. The recognition rate (asylum status) was 30% and the temporary admission rate was 58% in 2018. In February 2015, the Federal Administrative Court issued two leading cases regarding Syria. In a first judgment, it stated that considering the current circumstances in Syria, army deserters and conscientious objectors can risk persecution. 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.[10] In a second judgment, the Court stated that even ordinary participants of demonstrations in Syria against the regime risk persecution if they have been identified by Syrian state security forces.[11] 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.[12] In the case of a woman who joined the Rojava Peshmerga in norther Iraq, the Federal Administrative Court stated that she should be recognised as refugee as the Rojava are perceived as YPG-critical and therefore she would face problems to re-enter Syria as the partial cooperation between YPG and the Syrian Regime could not be excluded.[13]

In 2017, The Federal Administrative Court held, at least on two occasions, that the return to Syria was reasonable and lawful.[14] In one of these cases, the Court confirmed the withdrawal of a temporary admission based on the penal case of the person.[15] For 2019, the Federal Council decided to take in 800 particularly vulnerable recognised refugees, mainly victims of the Syrian conflict.[16]

 

Afghanistan

 

The second largest group of asylum seekers in 2019 were persons from Afghanistan. 1.397 persons asked for asylum in that period. 20% were granted asylum, while 73% received temporary admission. Returns to Afghanistan are generally considered unreasonable (which means a temporary admission is granted), with three exceptions: Returns to the cities of Kabul, Mazar-i-Sharif and Herat can be considered reasonable if certain conditions are met in the individual case, mainly a family or social network.[17] Although the Federal Administrative Court made a new analysis of the situation concerning Mazar-i-Sharif[18] and stated that the situation deteriorated, it still considered the return reasonable under certain conditions in the individual case.

In a principle judgment released on 13 October 2017, the Federal Administrative Court reassessed the security situation in Afghanistan.[19] Firstly, the Court estimated that the general security situation in Afghanistan had deteriorated but remains better in Kabul. Thus, the Court considered the execution of the expulsion to Kabul to be reasonable under careful consideration of circumstances that are favourable in individual cases (sustainable network of relationships, the possibility of securing the minimum existence level, secure living conditions, good health status). Paragraph 7 includes a general analysis of the situation in Afghanistan based on numerous sources, which concludes that the security situation has deteriorated in all regions since 2011.

The situation of Kabul is considered separately under paragraph 8 of the ruling. The Court finds that the security situation in Kabul is extremely precarious,[20] and has clearly deteriorated in comparison with the BVGE 2011/7 judgment. The situation in Kabul is regarded as fundamentally life-threatening and thus unacceptable.[21] However, this rule may be deviated from if there are particularly favourable factors which would prevent the returning person from being placed in a situation which would threaten his or her existence and on the basis of which, in exceptional cases, it can be assumed that the execution is reasonable. In summary, the Court considers an expulsion to Kabul to be reasonable only if the conditions are particularly favourable – in particular single, healthy men with a sustainable network of relationships, an opportunity to secure the minimum subsistence level and a secure housing situation – to be reasonable.[22] Accordingly, the Court put higher demands in place than in the past with regard to the clarification of a sustainable social/family network. The network must be able to guarantee “in particular economic progress and housing”. According to the Court, it may exceptionally be reasonable for young healthy men with a sustainable social network to be deported to Kabul.

 

Sri Lanka

 

In 2019, 721 asylum applications were lodged by persons from Sri Lanka. The recognition rate (asylum status) reached 31% of all the decisions rendered on the merits while 9% were given a temporary admission status. In July 2016, the SEM changed its practice regarding Sri Lanka. As it sees certain improvements in the security and human rights situation, asylum applications will be treated more restrictively.[23] In July 2016, the Federal Administrative Court updated its case law related to Sri Lanka by considering that the execution of removal to the northern (apart from the Vanni) and eastern provinces of the country was, in principle and under certain conditions, reasonable.[24] Subsequently, the Court continued restricting its stance through a principle judgment released in October 2017.[25] Thus, the Court argued that, since the end of the conflict in 2009, the security situation has improved significantly in the Vanni. 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”.[26] 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. In 2019, the practice remained the same.

 

Turkey

 

In 2019, Turkey was the third largest group of asylum seekers in Switzerland. 1,287 asylum applications were lodged by persons from Turkey. The recognition rate (asylum status) reached 71% of all the decisions rendered on the merits while 5% were given a temporary admission status.

In a principle judgment regarding exclusion from asylum released on 25 September 2018,[27] 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.[28]

In 2019, the Court stated in several judgements that the situation in Turkey deteriorated with regard to the political and human rights situation, especially in the southeast of the country.[29]

 

Other nationalities

 

Regarding Iraq, in December 2015 the Federal Administrative Court stated that there is no situation of generalized violence in the northern Kurdish provinces. Therefore persons can be returned to northern Iraq if they have a sustainable social or family network there.[30] Persons from central and southern Iraq usually receive a form of protection. As of 2019, the practice concerning Kurdish provinces remained the same.

In January 2019, Switzerland concluded an agreement with Ethiopia on the repatriation of applicants from Ethiopia who have received a negative asylum decision.[31] 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. Switzerland has nearly 300 Ethiopian nationals whose asylum applications were rejected and who are awaiting removal. [32] According to SEM’s statistics, no removal took place in 2019.

 


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

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

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

[4] Federal Administrative Court, Decision E-5022/2017, 10 July 2018.

[5] SEM, ‘Fin du projet pilote d’examen des admissions provisoires de ressortissants érythréens’, 3 September 2018, available (in French) at: https://bit.ly/2HWdeNG.

[6] Département fédéral de justice et police (DFJP), Situation des requérants d’asile érythréens en Suisse: pratique en matière d’asile et de renvoi, levée des admissions provisoires, retour et principe de l’aide d’urgence, Rapport du Département fédéral de justice et de police (DFJP) en réponse à la lettre du Haut-Commissariat des droits de l’homme (HCDH) du 19 juin 2019, 30 novembre 2019, available at: https://bit.ly/2SXnTuZ, p. 4.

[7] For further information, see Swiss Refugee Council, ‘Décision du Tribunal administratif concernant le renvoi d’une Erythréenne – Le jugement est incompréhensible’, 31 August 2017, available (in French) at: http://bit.ly/2FKqT5b; ‘La Confédération mise sur l’intimidation plutôt que sur des solutions’, 3 September 2018, available (in French) at: https://bit.ly/2TJGCbr.

[8]UN Committee against Torture, CAT/C/65/D/811/2017, 17 December 2018.

[9] 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.

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

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

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

[13] Federal Administrative Court, Decision D-5941/2017, 13 March 2019.

[14] Federal Administrative Court  Decision F-177/2017, 7 February 2017.

[15] Federal Administrative Court, Decision D-1105/2017, 31 May 2017.

[16] SEM, ‘Le Conseil fédéral propose un plan pour l’accueil de groupes de réfugiés reconnus’, 30 November 2018, available (in French) at: https://bit.ly/2MZX5pi.

[17] Federal Administrative Court, Decisions D-7950/2009, 30 December 2011 (Mazar-i-Sharif), D-2312/2009, 28 October 2011 (Herat), BVGE 2011/7, 16 June 2011 (Afghanistan in general and Kabul).

[18] Federal Administrative Court, Reference Decision D-4287/2018, 8 February 2019.

[19] Federal Administrative Court, Decision D-5800/2016, 13 October 2017.

[20] Ibid, para E.8.2.3.

[21] Ibid, para E.8.4.1.

[22] Ibid, para E.8.4.2.

[23] SEM, ‘Anpassung der Asyl- und Wegweisungspraxis für Sri Lanka’, 7 July 2016, available (in German) at: http://bit.ly/2jV4utf.

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

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

[26] 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) at: http://bit.ly/2AG5w5Z.  

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

[28] For further information, see Swiss Refugee Council, ‘L’arrêt sur les Kurdes ébranle les fondements du droit d’asile’, 5 October 2018, available (in French) at: https://bit.ly/2y9BULg.

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

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

[31] 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.

[32] 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: https://bit.ly/2QeCHp1.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection