Identification

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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, all but very complex asylum claims should be assessed and decided within 140 days. The fast-paced procedure puts administrative authorities and 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. 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]

A general document, detailing the State Secretary for Migration’s guidelines for the identification and protection of particularly vulnerable asylum seekers should be available to the public in 2023.

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] Most of the efforts of the SEM are focused on trafficking for purposes 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) strongly encouraged Swiss authorities to step up efforts to detect and prevent trafficking for the purpose of labour exploitation and trafficking in children.[5] GRETA is due to visit Switzerland for its third Evaluation Round in spring 2023. Final report is expected by the end of 2023.

In 2016, of the Federal Administrative Court highlighted the identification of victims of trafficking as the state’s obligation and the importance of their identification within the asylum procedure,[6] but did 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 interview conditions and the limited time are not favourable to building 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 specialised counselling centres established in the framework of the Federal Law on Assistance to Victims of Crimes (LAVI) and to other specialised organisations. 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 were subsequently identified by 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, with regard to both procedures and reception conditions.[7]

The Asylum and Human Trafficking working group[8] was established to implement action 19 of the National Action Plan against trafficking (NAP). Working under the lead of 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. The working group published a report in May 2021,[9] setting out a list of recommendations, which aim to better detect potential victims of human trafficking and to ensure that their rights are respected in asylum procedures. In particular, the SEM introduced a specific interview in case of indications of trafficking in human beings, and a 30-day recovery and reflection period for potential victims is now granted upon detection. SEM also vowed to reinforce staff training and develop practical tools dedicated to this issue.[10] While welcoming the report as a first step in the right direction, the NGOs involved in the consultation process pointed out that many protection gaps still remain.[11]

Age assessment of unaccompanied children

In 2022, 664 age assessments were conducted (out of a total of 2,450 applications made by unaccompanied minors); in 330 cases (50%), the SEM concluded that the asylum seeker was not a minor.[12]. Given the current Swiss practice, talking about ‘age assessments’ equals talking about ‘forensic procedures’.

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,[13] but the Swiss practice falls short of the international standards at different levels.[14]

The Federal Administrative Court had already ruled in the past that age assessments (by way of forensic examinations) could be ordered when the proof of the identity (e.g. date of birth) of the asylum seeker was not sufficient,[20] 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,[21] In a judgment passed in August 2018, the Federal Administrative Court clarified how the outcome of the forensic examinations should be assessed, in case of discrepancies among the different results.[22] Despite the judgement, inconsistencies can be observed in the way the different medical laboratories evaluate the outcomes of the forensic examinations.

In June 2022, the Swiss Society of Forensic Medicine published a report,[23] which attempts to bring some uniformity and clarity to the way forensic examinations are conducted. The report points out in particular that some examinations (especially dental examinations) can be influenced by ethnicity: the lack of reference studies can be highlighted if necessary, depending on the applicant’s origins. The Federal Administrative Court admitted for instance the lack of baseline studies on tooth maturation for the Afghan population.[24] Rather than leading to a more limited and cautious use of forensic medical examinations as a whole, however, recent observations by the Swiss Refugee Council suggest that the main effect of the report was to give even greater weight to the results of sterno-clavicular tomography.

In its concluding observations about Switzerland, published in October 2021, the CRC recommended that Switzerland ‘establish age determination procedures that respect the privacy and integrity of the child, include multidisciplinary assessments of the child’s maturity and level of development and respect the legal principle of the benefit of the doubt’.[25]

[1] UNHCR, written by Angela Stettler, Neustrukturierung des Asylbereichs – Asylsuchende mit besonderen Bedürfnissen im neuen schweizerischen Asylverfahren. Problemaufriss und erste Empfehlungen, August 2020, available in German at: https://bit.ly/35YrIG4.

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

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

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

[5] GRETA, Report, 9 October 2019, available in English at: https://bit.ly/2Q0rxlX, § 85 and 95-96.

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

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

[8] Coordinated by the Coordination Unit against the Trafficking and Smuggling of Migrants – Koordinationsstelle gegen Menschenhandel und Menschenschmuggel, KSMM.

[9] The report is available in German and French at: https://bit.ly/3to6e1Q.

[10] According to information provided by the SEM in April 2021 trafficking in persons is the topic of one basic training (1 hour) and one specialisation training (3 hours) offered to caseworkers. The content of the training or the number of caseworkers having followed such course are not known.

[11] Swiss Refugee Council, Mieux protéger les requérants d’asile victimes de la traite des êtres humains, press release, 25 May 2021, available in French (and German) at: https ://bit.ly/3qdGnYA.

[12] Data provided by the SEM, 1 May 2023.

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

[14] The Swiss Refugee council has developed guidelines with the aim of supporting legal representatives dealing with age assessment, available in French at: https://bit.ly/3qXyKou.

[15] Article 8 AsylA.

[16] In order to allow judicial scrutiny on age assessment, before a final decision on the asylum application is reached, legal representatives have started to challenge the legal age established by SEM through the use of the Federal Act on Data Protection (FADP). In short, procedure is as follows: once the SEM has reached a decision on the applicant’s age, their (presumed) D.O.B is registered in the Central Migration Information System (SIMIC). Since the administration has the obligation to make sure that all personal data recorded in the SIMIC is correct, legal representatives can appeal the SEM inscription of the presumed D.O.B. on the basis of the FADP, arguing that the D.O.B. declared by their applicant is more likely to be the correct one than the one chosen by SEM. This way, they force the Federal Administrative Court to go through the age assessment and decide which of the two dates, whether the one indicated by SEM or the one indicated by the applicant, is more likely to be the correct one, It is to be reminded, though, that this procedure represents an additional burden for the legal representatives, as it is lengthy and expensive in terms of time and resources. The procedure is thus only used in a limited amount of cases.

[17] SEM statistics are available at: https://bit.ly/3c87Js7.

[18] Data provided by the SEM, 1 May 2023.

[19] Data provided by the SEM, 1 May 2023.

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

[21] 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).

[22] Federal Administrative Court, Decision E-891/2017, 8 August 2018. 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 in Italian at: https://bit.ly/39MzwuN; E-7333/2018, 4 March 2019, available in French at: https://bit.ly/2It79FT; E-4959/2018, 4 February 2019 (Dublin case), available in German at: https://bit.ly/2xoq963; D-1589/2019, 15 May 2019, available in German at: https://bit.ly/39DKouH;
E-2999/2018, 14 February 2018, available in German at: https://bit.ly/3390Hx9.

[23] SSML, Forensische Altersdiagnostik, June 2022, available in German at: https://bit.ly/3C62nKI.

[24] Federal Administrative Court, Decision D-1874/2022, 31 August 2022, available at: https://bit.ly/3IeRWs9.

[25] Committee for the Rights of the Child, Concluding observations – Switzerland, October 2021. The report is available at: https://bit.ly/3Z0u559, 14.