Author
In Switzerland, unaccompanied children are entitled to asylum interviews if they are deemed capable of judgment. The assessment of this capability depends on the maturity and the development of the child in question.[1] Usually, a person is considered as able to make a judgment at the age of 14. The Federal Administrative Court has stressed the importance of the right of the child to properly take part in all the decisions that concern them and clarified in a detailed manner how this should be put into practice during the personal interview.[2]
A representative, a so-called person of trust, is immediately to be appointed for each unaccompanied asylum-seeking child. The latter assists the unaccompanied child during the asylum procedure.[3] The Asylum Ordinance 1 specifies that the duty of the representative starts with the first interview.[4] This means that in all the procedures, the representative should be present in the first as well as the second interview. Also, when a hearing takes place because the SEM does not believe that the person is a minor and is about to treat the person as an adult, a representative should be attending because the change of the asserted birth date should be considered as a decisive procedural step.
The child may then be transferred to a Canton, if they are moved to the so-called extended procedure and their asylum application is accepted or temporary admission granted. In these cases, the legal duties of the person of trust are passed on to other representatives, mostly social workers that operate within the different cantons as well as a legal representative if the asylum procedure is not yet completed. The discrepancies and different quality level of the care and support provided by the different cantonal offices has been highlighted in a report by the Conference of the Cantonal Directors of Social affairs committees.[5] The division of responsibilities between the persons of trust working in the Federal centres and the cantonal representatives is another sensitive issue. Moreover, the person of confidence is foreseen as an interim measure until child protection measures under the Civil Code (such as appointing a guardian) are implemented. The appointment of a guardian usually occurs after attribution to a Canton.
According to the new Asylum Ordinance 1, the mandate of the person of trust working inside the Federal centres or at the airports begins after the submission of the asylum application and lasts as long as the unaccompanied stays in said centre or at the airport or until he turns 18. If a Dublin procedure is pending, then the activity of the person of trust lasts until the unaccompanied minor is transferred to the competent Dublin State, or until s/he becomes an adult.[6] Even if the unaccompanied minor renounces of the appointed legal representative, the person of trust remains responsible for defending his or her interests. Neither the authorities nor the unaccompanied minor can waive the appointment of a person of trust.[7] This means that there is no need for the unaccompanied minor to agree with such designation.
In 2022, 2,450 applications were lodged by unaccompanied children, compared to 989 in 2021, 535 in 2020, 441 in 2019 and 401 in 2018.[8] Most of unaccompanied children were from Afghanistan (2,001 out of 2,450, 82%).
Profile and tasks
The duties of the person of trust (who also acts as legal representative in federal asylum centres) are not precisely defined by law and are therefore not always clear in practice.[9] The Asylum Ordinance 1 specifies that the representative must have knowledge of asylum law and the Dublin procedure. They accompany and support the minor in the asylum or Dublin procedure. The Ordinance lists a few examples of tasks that the representative must fulfil: advice before and during interviews; support in naming and obtaining elements of proof; support especially in the contact with authorities and medical institutions.[10] The idea is that the person of trust should support the asylum seeker in the asylum procedure, as well as in other legal/administrative tasks related to the asylum claim and to the minor’s situation in Switzerland (accommodation in the centre, attendance to school, health issues etc). In practice, as long as the minor stays in the federal asylum centre (maximum 140 days), the representative mostly accompanies them to the asylum interview or hearing. The child and the representative often only meet shortly before the interview and, in some cases, persons of trust cannot have direct access to the federal reception centres where minors are accommodated. Often the translator of the SEM is asked for help with the explanation of the representative’s role. Under these circumstances there is hardly any time to build trust.
Three years into the restructured procedure, it is to be noted that unfortunately a lot still needs to be done to ensure that legal representatives acting as persons of trust have the necessary support and resources to carry out their tasks in the best possible way.[11] Recent exchanges fostered by the Swiss Refugee Council confirm that the exchange and dialogue between the persons of trusts and other actors responsible for the children’s well-being and care inside the centres (social workers, educators, teachers, etc) is often made difficult or hindered by cumbersome bureaucratic requirements. Furthermore, the need remains to better clarify the responsibilities and tasks of the persons of trust working inside the centres and the social workers that are active at a cantonal level. Shortcomings in the care and support of UASC are unfortunately the consequence. As an example, while an increasing number of unaccompanied children continue to disappear from asylum centres, there are no standard protocols in place to ascertain how to approach the issue and to better protect UASC from the risk of falling prey of trafficking networks.[12]
[1] Asylum Appeals Commission, Decision EMARK 1996/4, 9 March 1995.
[2] Federal Administrative Court, Decision E-1928/2014, 24 July 2014.
[3] Article 17(3) AsylA.
[4] Article 7(2-bis) AO1.
[5] Recommandations de la Conférence des directrices et directeurs cantonaux des affaires sociales (CDAS), 20 May 2016, available at: https://go.aws/39BQxHD.
[6] The person of trust also represents the child in the procedures referred to in Articles 76a and 80a FNIA.
[7] Federal Administrative Court, Decision D-5672/2014, 6 January 2014.
[8] SEM statistics are available at: https://bit.ly/3c87Js7.
[9] Asylum Appeals Commission, Decision EMARK 2006/14, 16 March 2006.
[10] Article 7(3) AO1.
[11] CRC, Concluding observations – Switzerland, October 2021, p. 14. Report is available here: https://bit.ly/3VBR0Rj.
[12] This issue had already been tackled by GRETA in its second report on Switzerland (available here: https://bit.ly/3YeHAxe), see para 95: “GRETA urges the Swiss authorities to strengthen efforts to prevent trafficking of unaccompanied or separated children by addressing the problem of such children going missing, in particular by providing suitable safe accommodation and adequate supervision, as well as systematically carrying out police investigations into disappearances of unaccompanied and separated children and strengthening follow up and alert systems on reports of missing children”. See also the CRC, Concluding observations – Switzerland, October 2021, which urges the State to “investigate reports of alleged disappearance of children during the asylum procedure, establish their whereabouts and prosecute those responsible for crimes involved in such disappearances”, page 14. Report is available here: https://bit.ly/3YZx7H5.