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.
Nevertheless, some international instruments signed by Switzerland specifically provide for the screening of some groups of asylum seekers. We will thus focus on the implementation of these provisions into 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,to respond to European requirements. 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.
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. 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 recent 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 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.
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). 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. 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 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.
The Swiss Refugee Council is part of the above mentioned working group in the context of the NAP and previously took part in the transnational TRACKS project, which aims at identifying the special needs of victims of human trafficking in the asylum procedure.
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, but the Swiss practice seems to fall short of the international standards at different levels.
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. 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. 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 only rely on forensic examinations to assess the asylum seeker’s age. In 2019, 168 age assessments were conducted, the number of persons who were not registered as minor after the age assessment is not available.
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, 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.
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.
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. This practice seems quite detached from the best practices showcased in other European countries and recommended in multiple international and regional reports, and deserves close monitoring.
 Art. 35 and 36 of the Ordinance on Admission, Period of Stay and Employment
 Art. 10 Council of Europe Convention on action against Trafficking in Human beings, Warsaw, 16 May 2005
 Federal Administrative Court, Decision D-6806/2013, 18 July 2016
 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.
 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.
 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.
 The Swiss Refugee council has developed guidelines with the aim of supporting legal representatives dealing with age assessment, available at: https://bit.ly/2TyfKxk.
 Article 8 AsylA.
 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).
 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, avaiable 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, avaiable at: https://bit.ly/39DKouH; E-2999/2018, 14 February 2018, available at: https://bit.ly/3390Hx9.