Differential treatment of specific nationalities in the procedure

Switzerland

Country Report: Differential treatment of specific nationalities in the procedure Last updated: 19/04/22

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Afghanistan

The largest group of asylum seekers in 2021 were Afghans, with a total of 3,079 applicants. Out of them, 23% were granted asylum at first instance, while 75% received temporary admission.

Due to the events in Afghanistan in the second half of 2021, the SEM did not enforce deportations as of April 2022.. According to the SEM, the “clear” cases (which would have been granted a status even before the Taliban took power) will continue to be decided. But the “unclear” cases (which would have received a return decision before the Taliban takeover, especially for persons with a social network in Kabul/Herat/Mazar-i-Sharif) are not decided at the moment. Same for re-examination requests: in cases previously classified as reasonable, no decision is currently being made. The Swiss Refugee Council finds this problematic for the persons concerned as they are in emergency assistance for months without knowing what will happen next. Decisions will continue to be on a case-by-case basis, there is no assumption of a collective prosecution.

The situation before the Taliban takeover was as follows: Returns to Afghanistan were 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.[1]

In a principle judgment released on 13 October 2017, the Federal Administrative Court reassessed the security situation in Afghanistan.[2] 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. 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,[3] life threatening and thus unacceptable.[4] 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.[5] 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”. Even stricter conditions are required if Kabul is considered as an internal flight alternative, for example because the applicant has been living or studying there and has family or social network in Kabul. According to the Court, it may exceptionally be reasonable for young healthy men with a sustainable social network to be deported to Kabul.

The Federal Administrative Court made a new analysis of the situation concerning Mazar-i-Sharif in 2019, and stated that the situation deteriorated. It still considered the return reasonable under certain conditions in the individual case.[6]

In June 2021, the Court issued a principle judgement[7] regarding the return to Herat. Due to the worsening economic situation and security situation, the return was only assumed reasonable in the presence of particularly favourable circumstances. This is considered the case – in accordance with the practice on Kabul) – in particular if the returnee is a young, healthy man who can fall back on a social network that proves to be sustainable in terms of reception and reintegration. This must be able to provide the returnee, in particular, with adequate housing, basic services, and assistance for social and economic reintegration.

Turkey

In 2021, with 2,330 applications lodged by Turkish nationals, Turkey was the second largest group of asylum seekers in Switzerland. The recognition rate at first instance (asylum status) reached 85% of all the decisions rendered on the merits while 6% were given a temporary admission status.

In a principle judgment regarding exclusion from asylum released on 25 September 2018,[8] 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.[9]

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.[10] In a judgement of November 2019, the Court ruled that Turkish authorities can be considered as willing and able to protect victims of gender specific persecution.[11]

Eritrea

In 2021, Eritrea was the third largest group of asylum seekers in Switzerland with 2,029 applications lodged.

Applications lodged by Eritreans : 2019-2021[12]
Total new asylum applications Primary applications Secondary applications Relocation
Total Births Family reunification Multiple applications
2019 2,899 297 2,601 1,434 1,057 110 1
2020 1,917 211 1,706 1,173 366 167 0
2021 2,029 386 1,642 1,310 216 116 1

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 who were 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 and 19% in 2021.

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 not anymore, in itself, justify the recognition of refugee status and  additional individual elements were required.[13] 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 unreasonable. Thus, noting that the situation in Eritrea had 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.[14] In a third leading decision, the Federal Administrative Court stated that there was no interdiction of refoulement (due to Article 3 and/or 4 ECHR) nor an obstacle to the execution of removal in national law[15] for persons who have to serve in national service.[16] 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.[17]

Between 2018 and 2020, the SEM examined and reviewed the temporary admission of 3,400 Eritrean nationals, concluding that removal was reasonable and revoking the temporary admission status in 83 cases (2.4%). 63 of these decisions have entered into force by December 2020, while six appeals were admitted and the 14 cases are still in appeal procedure.[18] In October 2020, the Federal Administrative Court has clarified that revocation of temporary admission after such review requires an examination of proportionality taking into account the degree of integration of the person concerned.[19]

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.[20] 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.[21]

Syria

Syrians were the fourth largest group of asylum seekers in Switzerland in 2021, with a total of 1,024 applications for international protection lodged. The recognition rate at first instance (asylum status) was 57% and the temporary admission rate was 36% in 2021. This is because in many cases, the SEM finds the applicant to be no direct target of persecution but rather a victim of generalised conflict and violence.

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.[22] 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.[23] 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.[24] In the case of a woman who joined the Rojava Peshmerga in Northern 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.[25] In 2020, the Court ruled on two cases concerning homosexual applicants whom the SEM had not recognised as refugees, and granted them asylum.[26]

In 2017, The Federal Administrative Court held, at least on two occasions, that the return to Syria was reasonable and lawful.[27] In one of these cases, the Court confirmed the withdrawal of a temporary admission based on the penal case of the person.[28]

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

Algeria

The fifth largest group of asylum seekers in Switzerland 2021 was persons from Algeria. There were 1,012 asylum applications, but only 5 persons were granted asylum, 9 persons received a temporary admission. The rejection rate is very high at 92%.

Sri Lanka

In 2021, 621 asylum applications were lodged by persons from Sri Lanka. It was the sixth largest group of asylum seekers in Switzerland in 2021. The recognition rate at first instance (asylum status) reached 41% of all the decisions rendered on the merits while 10% were given a temporary admission status. In July 2016, the SEM changed its practice regarding Sri Lanka. As it saw certain improvements in the security and human rights situation, asylum applications would be treated more restrictively from that moment.[31] In July 2016, the Federal Administrative Court updated its case law related to Sri Lanka by considering that the enforcement of removal to the northern (apart from the Vanni) and eastern provinces of the country was, in principle and under certain conditions, reasonable.[32] Subsequently, the Court continued restricting its stance through a principle judgement released in October 2017.[33] Thus, the Court argued that, since the end of the conflict in 2009, the security situation has 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”.[34] 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 despite the change of government. In November 2019, an employee of the Swiss embassy was kidnapped in order to obtain information about a high-profile police inspector who had investigated family Rajapaksa and had flown to Switzerland after the election of President Gotabaya Rajapaksa, where he had applied for asylum.[35] This incident did not impact the SEM’s practice towards Sri Lankan applicants. In February 2020, the SEM published an Update on the situation in Sri Lanka.[36]

 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.[37] Persons from central and southern Iraq usually receive a form of protection. As of 2021, the practice concerning Kurdish provinces remained the same.

Practice toward Ethiopian asylum seekers has become more and more restrictive since the election of President Abiy Ahmed in 2018. Despite several reports of violence and violation 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”.[38] In January 2019, Switzerland concluded an agreement with Ethiopia on the repatriation of applicants from Ethiopia who have received a negative asylum decision.[39] 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. [40] According to SEM’s statistics,[41]  8 removals took place in 2021 (compared to 4 in 2020).[42]

Regarding applicants from Tibet, very often the SEM does not believe that they have actually 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 whose claim to have been socialised in Tibet had been considered not credible following such analysis. However, independent experts argued that the LINGUA-Analysis had not been conducted in a professional way and therefore was not reliable.[43] In 2020, about 300 Tibetans lived in Switzerland without regular status.

 

 

 

[1] 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).

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

[3] Ibid, para E.8.2.3.

[4] Ibid, para E.8.4.1.

[5] Ibid, para E.8.4.2.

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

[7] Federal Administrative Court, Decision D-4705/2016, 14 June 2021.

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

[9] 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.

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

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

[12] SEM, asylum statistics 2021 (7-21).

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

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

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

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

[17] 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.

[18] Communication of SEM, 18 December 2020, available at: https://bit.ly/3pxbTxv. See also the report of the Federal Council responding to the motion no 18.3409 by Müller Damian of 29 May 2018, available at: https://bit.ly/3mWAOZP.

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

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

[21] 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.

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

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

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

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

[26] Federal Administrative Court, D-6722/2017, 12 August 2020 and D-1648/2018, 17 December 2020.

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

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

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

[30] SEM, asylum statistics 2021.

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

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

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

[34] 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: http://bit.ly/2AG5w5Z

[35] See the News on the website of the Swiss Refugee Council, available in French (and German) at: https://bit.ly/3qb2MTP.

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

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

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

[39] 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.

[40] 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.

[41] SEM, asylum statistics (7-30).

[42] 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.

[43] See the News of the Swiss Refugee Council of 2 November 2020, available in French (and German) at: https://bit.ly/2NeunoI.

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