Identification

Switzerland

Country Report: Identification Last updated: 14/05/21

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The law does not specifically provide for the screening of vulnerabilities and there is no standard procedure in practice to assess and identify them. Furthermore, since 1 March 2019, all but very complex asylum claims should be assessed and decided within 140 days. The fast-paced new procedure puts the administrative authorities and the legal representatives under increased pressure, which, coupled with the lack of standard identification tools, may result in overlooking potential vulnerabilities. A report published by UNHCR in 2020 details the protection gaps existing in the Swiss asylum system in this regard, and advances concrete suggestions to overcome them.[1]  According to UNHCR, there remain wide margins for improvement in the screening and identification of vulnerable applicants. A general document, detailing the State Secretary for Migration’s guidelines for the identification and protection of particularly vulnerable asylum seekers is due for publication in 2021. These guidelines were not publicly available at the time of writing of this report. Similar concerns were also raised by the National Commission for the Prevention of Torture (NCPT), which published its latest report on federal reception centres in January 2021.[2]

Some international instruments signed by Switzerland specifically provide for the screening of some groups of asylum seekers. We will focus on the implementation of these provisions in the Swiss practice.

Screening of vulnerability: Victims of human trafficking

The obligation to identify victims of human trafficking has been introduced in the Swiss legislation,[3] to respond to European requirements.[4] Since the beginning of 2014, the SEM has intended to improve the protection of victims of human trafficking. Despite the fact that trafficking in human beings encompasses different forms of exploitation, most of the efforts until today have been focussed on the trafficking for the purpose of sexual exploitation. In its second report on Switzerland, the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) has strongly encouraged Swiss authorities to step up efforts to detect and prevent trafficking for the purpose of labour exploitation and trafficking in children.[5]

A 2016 decision of the Federal Administrative Court sees the identification of victims of trafficking as the state’s obligation and highlights the importance of identification within the asylum procedure.[6] The decision states that if, during the screening or the asylum interview, there appear to be indications that the person is a victim of trafficking then: (a) the necessary further investigations must be carried out ex officio; (b) protective measures must be taken in favour of the victim; and (c) expulsion must be waived if the imminent risk of recruitment to prostitution or of retaliation is made credible. However, the same decision does not explicitly state that a failure to fulfil this obligation represents a violation of Article 10 of the Council of Europe Convention.

Despite this, it remains very difficult to identify victims of human trafficking in the context of the asylum procedure, as the conditions of the asylum interviews and the limited time are not favourable to build the necessary trust between the applicant and the authorities.

In its 2019 report on Switzerland, GRETA found that the SEM does not conduct formal identification of victims of trafficking and limits itself to detecting possible victims based on their allegations, referring them to the criminal investigation authorities, to specialized counselling centers established in the framework of the Federal Law on Assistance to Victims of Crimes (LAVI) and to other specialised organisations.[7] Furthermore, GRETA highlighted cases in which victims of trafficking were not identified in the asylum process and received a negative decision regarding their asylum application. They remained in Switzerland as irregular migrants and subsequently came to the attention of outreach work organisations after having experienced further exploitation in Switzerland. GRETA expressed concern as regards the lack of early identification mechanism, because it reduces the possibilities for victims of trafficking to benefit from timely support in the asylum process, both with regard to procedures and reception conditions.[8]

A working group coordinated by the Coordination Unit against the Trafficking and Smuggling of Migrants (Koordinationsstelle gegen Menschenhandel und Menschenschmuggel, KSMM), supports the implementation of action no. 19 of the National Action Plan against trafficking (NAP).[9] The so-called Working Group on Asylum and Human Trafficking was established already under the 2012-2014 NAP, and it is working under the lead of the SEM. It is made up of SEM officials and representatives of the main NGOs active in the asylum field, including the Swiss Refugee Council. Its task is to optimise identification processes regarding human trafficking victims, provide victim assistance during the asylum (including Dublin) procedure, outline these processes in an open publication (e.g. handbook, brochure, etc.), and determine what further action is needed. Publication of the results was due by the end of 2020 but as of May 2021, the report has yet to be released.

The current SEM internal guidelines on how to proceed in cases of asylum-seeking victims of trafficking (which are not publicly available) are expected to be revised in the course of the implementation of action no. 19 of the NAP. According to the current guidelines, if the interviewer of the SEM suspects a possible victim, they inform a person within the SEM who is responsible for the topic of human trafficking. This way, on the one hand, the Federal Criminal Police can be informed, and on the other hand, the hearing will be conducted by a person of the same sex as the applicant.[10] The grant of a ‘reflection and recovery’ period for victims of trafficking, as foreseen by the Convention against Trafficking,[11] was in the past not applied to those who were undergoing an asylum procedure. According to the federal authorities, the 30-day recovery and reflection time was nevertheless taken into account in the asylum procedure, insofar as the procedural deadlines to respond to an asylum application, and where appropriate to order the removal of a person, are more than 30 days.[12] However, this practice has recently changed: when the SEM considers the applicant a victim of trafficking, it also grants such period of ‘reflection and recovery’ to asylum seekers. The problem is that such period is often conceived as a simple waiting period and no specific measures are taken for the victim.

According to information provided by the SEM, trafficking in persons is the topic of one basic training (1 hour) and one specialisation training (3 hours) offered to caseworkers.[13] The content of the training or the number of caseworkers having followed such course are not known.

Age assessment of unaccompanied children

The UN Convention on the Rights of the Child (CRC) is in force in Switzerland since 1997. The Committee on the Rights of the Child has issued multiple statements on age assessment and the way it should be implemented by State parties,[14] but the Swiss practice seems to fall short of the international standards at different levels.[15]

For instance, even though, in principle, minority should always be presumed, in practice not all applicants claiming to be under the age of 18 are treated as children and granted the child-specific protections throughout the assessment process, including the right to not be accommodated with adults (See section on Special reception needs of vulnerable groups). Furthermore, although the person is not explicitly forced to consent the age assessment process, if he or she refuses to participate, the SEM may claim that the asylum seeker has not complied with the duty to cooperate and could therefore be qualified as an adult, or even lose his or her right to have the proceeding continued.[16] Also, there is no effective remedy to challenge the decision on age assessment. The asylum seekers only have the chance to challenge it when they lodge an appeal against the asylum decision itself. Finally, Swiss authorities mainly rely on forensic examinations to assess the asylum seeker’s age. In 2020, 305 age assessments were conducted (out of a total of 535 applications made by unaccompanied minors); in 172 cases (56%), the SEM concluded that the asylum seeker was not a minor.[17] By way of comparison, in 2019 only 168 age assessments were conducted (out of a total of 441 applications made by unaccompanied minors), which points to an increasing use of such measure by the SEM.

The Federal Administrative Court had already ruled in the past that age assessments could be ordered when the proof of the identity (e.g. date of birth) of the asylum seeker was not sufficient,[18] and the previous legislation already foresaw the use of scientific methods to assess the age. The law now provides for a combination of methods to be used.[19]

In August 2018, the Federal Administrative Court reviewed the practice of age determination and stated that: (a) the X-ray of the wrist bones is to be done beforehand because, if such analysis shows a significant probability of a minor age, one dispenses examinations of the teeth and the clavicle, which imply a greater exposure to radiation; (b) if the X-ray of the wrist does not come to a conclusive result, then the X-ray of the collarbone and teeth must be carried out; (c) physical examination is carried out only in specific circumstances i.e. if there is specific medical history or discrepancies in the age determination that cannot be explained otherwise.[20]

Therefore, according to the Federal Administrative Court, there is strong evidence of full age when both the hand and the sternum-clavicular joint X-rays provide a minimum age which is above 18, or when the age ranges provided by the two analyses overlap and they are both above 18. On the contrary, evidence of full age is weak if, despite a possible medical explanation, the age ranges provided by the two exams do not overlap (still placing the probable age above 18). Finally, evidence is very weak if the minimum age is below 18, the two analyses do not overlap and there is no possible explanation for the discrepancy. With this decision, the Federal Administrative Court implicitly confirmed that all the four examinations mentioned above can be carried out, that the approach used is exclusively medical, and that no other methods such as interviews with psychologists or cultural mediators should be applied. In addition, there is no mention of the presence of a paediatrician during the screening process. Furthermore, it was reported that many doctors in charge of age assessment still do genital examinations, unless the applicant refuses such examination. These practices are quite detached from the best practices showcased in other European countries and recommended in multiple international and regional reports, and deserves close monitoring.[21]

 

[1] A. Stettler, Neustrukturierung des Asylbereichs – Asylsuchende mit desonderen Bedürfnissen im neuen schweizerischen Asylverfahren. Problemaufriss und erste Empfehlungen, August 2020, available at: https://bit.ly/35YrIG4

[2]   NCPT, Report on federal asylum centres 2019-2020, January 2021, available at: https://bit.ly/3jEAb72, p. 13-16.

[3]  Art. 35 and 36 of the Ordinance on Admission, Period of Stay and Employment

[4]   Art. 10 Council of Europe Convention on action against Trafficking in Human beings, Warsaw, 16 May 2005

[5]   GRETA, Report, available at: https://bit.ly/2Q0rxlX, § 85 and 95-96.

[6]  Federal Administrative Court, Decision D-6806/2013, 18 July 2016

[7]  According to statistics provided by the SEM, 84 presumed victims of trafficking were detected among asylum seekers in 2014, 32 in 2015, 73 in 2016, and 100 in 2017. In the Dublin procedure, 19 presumed victims were detected in 2014, 17 in 2015, 34 in 2016 and 41 in 2017.

[8]  GRETA, Report, October 2019, available at: https://bit.ly/2InYsws, §128-130.

[9] Swiss Coordination Unit against the Trafficking in Person and Smuggling of Migrants (KSMM), National Action Plan to Fight Human Trafficking 2017-2020, available at: https://bit.ly/2ImwVeP.

[10] For more information, please refer to the Alternative Report on the Implementation of the Council of Europe Convention on Action against trafficking in human beings in Switzerland, June 2018, available at: https://bit.ly/2RhRG00.

[11]Council of Europe, Council of Europe Convention on Action against Trafficking in Human Beings, available at: https://tinyurl.com/hlrl6ut, art. 13

[12]  GRETA, Report, October 2019, available at: https://bit.ly/2InYsws, §185-186

[13]  Information provided by the SEM, 27 April 2021.

[14] CRC, General Comment No.4 (2017), available at: https://bit.ly/2VV7KIg, §II.4; SCEP, Statement of Good Practice (2009), available at: https://bit.ly/2TB3M6b, §D5.1; CRC, General Comment No. 12 (2009), available at: https://bit.ly/3aCJ0sm, §22; CRC, General Comment No. 6 (2005), available at: https://bit.ly/2VWg9Lx, §21 and section V.b.

[15] The Swiss Refugee council has developed guidelines with the aim of supporting legal representatives dealing with age assessment, available at: https://bit.ly/2TyfKxk.

[16] Article 8 AsylA.

[17]  Data provided by the SEM, 19 March 2021.

[18]  Federal Administrative Court, Decision E-1552/2013, 2 April 2013, available at: https://bit.ly/2v4MKDN, para 4.2.

[19] Article 7 AO1 provides for a combination of methods, which include skeletal age (e.g. X-ray of the hand, possibly CT scan of the sternum-clavicular joint) as well as dental age and physiognomy (e.g. sexual maturity and physical constitution).

[20]  Federal Administrative Court, Decision E-891/2017, 8 August 2018.

[21]  The Federal Administrative Court does sometimes step in to correct the SEM’s practice, when the latter is too strict or detached from international guidelines. See for instance: Federal Administrative Court, Decisions D-4824/2019, 27 September 2019, available at: https://bit.ly/39MzwuN; E-7333/2018, 4 March 2019, available at: https://bit.ly/2It79FT; E-4959/2018, 4 February 2019 (Dublin case), available at: https://bit.ly/2xoq963; D-1589/2019, 15 May 2019, available at: https://bit.ly/39DKouH; E-2999/2018, 14 February 2018, available at: https://bit.ly/3390Hx9.

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