Special procedural guarantees

Switzerland

Country Report: Special procedural guarantees Last updated: 30/11/20

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There is no specific unit to carry out the procedures for vulnerable persons, but there are experts for specific topics within the SEM (“thematic specialists”) who can be asked for advice or support in difficult cases (for example regarding unaccompanied minors, gender-specific violence or victims of trafficking). These collaborators also treat asylum applications themselves and they are responsible for the development of practice trends and decision-making on their topic. One out of three collaborators per unit is specialised on unaccompanied minors.[1]

In addition, all caseworkers are trained in interviewing children and adolescents by internal and external trainers.[2]

 

Adequate support during the interview and credibility assessment

 

People with serious illnesses or mental disorders, and survivors of torture, rape or other forms of serious violence, including female genital mutilation (FGM)

The UN Human Rights Committee stated in its recommendations on the fourth periodic report of Switzerland,[3] that it regretted that expert evaluations drawn up pursuant to the Istanbul Protocol were not fully recognised and taken into account by the Swiss authorities in implementing the principle of non-refoulement.[4] According to the same recommendations, Switzerland should ensure that all personnel concerned receive systematic and practical training on the Istanbul Protocol and apply it.

Despite this, national NGOs report of numerous cases in which in which the SEM has failed to carry out further investigations and, in particular, to have expert reports drawn up in accordance with the standards of the Istanbul Protocol if asylum seekers assert – in the hearings or via medical reports – that they are victims of torture or inhuman/degrading treatment.[5] Even when asylum seekers nevertheless succeed in producing such reports in individual cases, the Swiss authorities often fail to take them into account adequately, especially when it comes to the (physical/psychological) consequences of the ill-treatment endured. This in turn can have a very meaningful impact on the asylum claim, as it makes it very hard for the asylum seekers to make their claims credible.

In its most recent report, the National Commission for the prevention of Torture considered that, in all the asylum and migration centres that it visited, there was no standard protocol in practice to facilitate access to assistance and support for victims of torture.[6] A round table with representatives of the SEM and of national NGOs dealing with the topic took place in September 2019, but it is unclear which further steps the Government will take to better implement the provisions of the Protocol (see also section on Use of medical reports).

In September 2018 the UN Committee against Torture ruled that the expulsion of a torture survivor from Switzerland to Italy under the Dublin Regulation would violate the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. In particular, the Committee reproached the Swiss authorities for not undertaking an individual assessment of the personal and real risk that the complainant would face in Italy as an asylum seeker and victim of torture, and for simply relying on the assumption that he was not particularly vulnerable and would thus be able to obtain adequate medical treatment in Italy.[7]

LGBTQI*

The SEM held a course on LGBTI asylum claims at the beginning of 2017 to inform the interviewers on the specificities of an LGBTI case (late disclosure, credibility, etc.). It does not appear that other courses were carried out subsequently. Despite the very detailed information and guidelines provided in the SEM Handbook (see section on Victims of gender-based violence),[8] the conduct of the hearings continues to pose many problems. For instance, the asylum seeker is not always granted the right to be interviewed by people of a gender of his/her choice. Also, late disclosure is often weighted against the applicant, despite abundant evidence that trauma or fear can prevent LGBTQI* asylum seekers to disclose their past experiences in a timely manner.[9] Together with NGOs active on the field, the Swiss Refugee council has developed guidelines with the aim of supporting legal representatives dealing with LGBTQI cases.[10]

Victims of gender-based violence

According to the Asylum Act, motives for seeking asylum specific to women must be taken into account.[11] Furthermore, when spouses, registered partners or a family apply for asylum, each person seeking asylum has the right, as far as he or she is capable of discernment, to have their own reasons for asylum examined.[12]

If there are indications or if the situation in the country of origin is indicating gender-specific violence and persecution, the asylum seeker will be interviewed by a person of same gender according to the law.[13] The SEM Handbook specifies that men who are victims of gender-specific violence and persecution should also be able to choose the gender of the interviewing official, but that in this case the provision will be applied with some “pragmatism”.[14] The rule also applies to the interpreter and the person taking notes. Despite this rather clear legal framework, the SEM does not always comply with these obligations.[15]

When it comes to the assessment of credibility, settled case law accepts that a traumatized woman may try to protect herself from difficult memories by frequently using “stereotypes” or in some cases by changing the subject of phrases.[16] Yet, the SEM is often very strict in assessing credibility, especially of late and somewhat inconsistent narratives, even when they come from highly traumatized women[17].

Victims/possible victims of human trafficking

The guarantees that are in place for victims of gender-based violence (see section C above) can also be applied to potential victim of human trafficking (PVOT) or victim of human trafficking (VOT). Nevertheless, no specific provision is in place to ensure that.

In a judgement on the credibility assessment of victims of trafficking in the asylum procedure and the positive obligations of the authorities to identify victims of trafficking, the Federal Administrative Court noted that untrue statements in earlier proceedings constitute a typical testimony of victims of human trafficking, and therefore should not automatically lead to the assumption that the subsequent human trafficking allegations were unreliable.[18]

Minors/unaccompanied minors

Regarding the personal interview of children, especially unaccompanied children, Swiss law provides for the interviewer to take into account the special nature of being a child.[19] Also according to case law specific guarantees should be in place.[20] Namely, the atmosphere should be welcoming and benevolent, the adults in the room must have an open and empathetic attitude, each of the participants should introduce themselves to the child and the aims and objectives of the interview should be clarified in a child friendly manner. The Court also provided some details on how the interview should take place: the pace should be slower than the one followed in an interview with an adult, breaks should be granted every 30 minutes, ‘open’ questions should be preferred, at least at the beginning, conversation topic should be changes only after announcing it to the minor, the listeners ‘attitude should remain neutral.

The practice unfortunately does not always live up to these standards. In one decision, the Federal Administrative Court took specific issue with the way the SEM conducted the interview, and quashed the SEM decision as in the opinion of the Court the SEM did not take sufficient account of the child’s particular vulnerability during the hearing. Thus, the hearing was conducted in the same way as that of an adult asylum seeker: introductory questions to create a trusting atmosphere were completely absent, the pace of questioning and the type of questions posed were not appropriate, the role and function of the officers present not clearly explained. The Court found that the child’s right to be heard had been breached, and that the administrative authorities should re-assess the case.[21]

 

In other cases, the administrative authorities fail to consider that the minor’s age could have an impact on the internal consistency of his/her accounts, and apply the same credibility standards in place for adults. This is also in contrast with international guidelines on child-friendly justice and on the child’s right to be heard.[22]

 

Decision-making process

 

People with serious illnesses or mental disorders, and survivors of torture, rape or other forms of serious violence, including female genital mutilation (FGM)

The practice is not always correct when it comes to victims of FGM (or at risk thereof): sometimes the SEM refuses asylum on the basis that FGM is a one-off act that cannot be repeated on the same girl or woman and that asylum law cannot make up for wrongful acts committed in the past. This is in sharp contrast with the UNHCR guidance on FGM.[23] The Federal Administrative Court takes a more careful approach. In one judgement,[24] for instance, the Federal Administrative Court accepted that FGM is a form of persecution specific to women. In examining the risk of future harm, the judges did not consider the risk of re-infibulation, but rather the general risk that the applicant will be subjected to other forms of persecution as a single, displaced woman with children. Moreover, the trauma caused by FGM is mentioned as a cause of the applicant's fragility and subsequent vulnerability.

LGBTQI*

When it comes to decision-making, the SEM and Federal Administrative Court do not consider criminalization of “non-compliant” sexual identity/gender orientation in the country of origin as sufficient ground for an asylum request.[25] Furthermore, both bodies attach a lot of weight to the “discretion requirement”, often claiming that the asylum seeker could avoid persecution by concealing their sexual orientation upon return to the country of origin. This is though in contrast with recent jurisprudence from the CJEU.[26]

Victims of gender-based violence

Although SEM specifically recognises in its Handbook that domestic violence, forced marriage and sexual violence are forms of gender-based persecution that may be relevant to an asylum application, there are very few concrete cases where applications based on this type of violence have actually been accepted. The biggest problem is always the credibility of the applicants, but both the SEM and the FAC also have great difficulty in recognizing that women victims of these types of violence could also qualify as members of a particular social group.[27]

The Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) entered into force in Switzerland in April 2018. A group of NGOs, the Network Istanbul Convention, has been created to monitor the implementation of the Convention in the Swiss practice.

Victims/possible victims of human trafficking

Contrary to practice in other European countries, the SEM and the Federal Administrative Court deny that victims of trafficking can be considered as 'members of a defined social group.'[28]

While decisions and judgments on the merits are rare, there are more cases concerning victims of trafficking in the Dublin procedure, with, in some cases at least, positive decisions. In one case the Federal Administrative Court considered the case of a Nigerian mother-of-two, PVOT, whom the SEM wanted to transfer to Italy under the Dublin procedure.[29] While denying the existence of structural deficiencies in the Italian reception and accommodation system, the Federal Administrative Court found that, after the entry into force of the Salvini Law (L132/2018), the SEM should conduct additional inquiries on the real possibility for the Italian authorities to take charge of the applicant and her children. Hence, the Court referred the case to the SEM for further instruction.

In another case, concerning France, the Court reminded the administrative authorities that in possible cases of trafficking they need to initiate investigations ex officio without the need for the victim to report it.[30] Furthermore, the Court found that the general presumption of safety in human trafficking cases is not justified in the case of France, given that there are concrete indications that the vulnerability of potential victims of human trafficking in France cannot always be adequately taken into account”.

 

Exemption from special procedures

 

It is possible, on an individual basis, to exempt an applicant from the airport procedure if stay in the transit zone is deemed to be too costly on the basis of the indications given by care staff, medical reports and medical consultations on his or her vulnerability.

The number of applicants exempted from the airport procedure was 50 in 2018.[31]

 


[1] Information provided by the SEM, 3 August 2017.

[2] Ibid.

[3] UN Human Rights Committee, Concluding observations on the fourth periodic report of Switzerland, 22 August 2017, available at: https://bit.ly/2Q0ZdQb.

[4]  The UN General Assembly adopted the Manual on Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Istanbul Protocol, almost 20 years ago, available at: https://bit.ly/39Cyl0P. The Istanbul Protocol contains internationally recognised standards and procedures on how to recognise and document symptoms of torture, so that the documentation may be used as evidence in Court. Although non-binding as such, it does have a  quasi-binding legal nature, because every State signatory to the Convention against Torture and other cruel, inhuman or degrading treatment or punishment must adhere to the standards set out there, if it wants to fulfil the obligation to carefully and effectively examine evidence of torture. As a result, the Istanbul Protocol has established itself internationally as the instrument for documenting torture and inhumane treatment.

[5] An NGO ‘working group’ is dedicated to the implementation of the Istanbul Protocol into the Swiss practice, information available at: https://bit.ly/2TNahBH.

[6] National Commission for the prevention of torture, NCPT, Report regarding federal centres for asylum, 2017-2018, available at: https://bit.ly/331LlKQ, §84.

[7] UN Committee against Torture, CAT/C/64/D/742/2016, 3 September 2018, available at: https://bit.ly/2Gy8FXA, §8.6.

[8] SEM Handbook on asylum and return, avaiable at: https://bit.ly/2wCi2SZ, D2.

[9] Federal Administrative Court, Decision E-4306/2018, 21 September 2018, available at: https://bit.ly/2VXp3IP; E-4422/2017, 2 April 2019, available at: https://bit.ly/3cLvrsk; E-3422/2018, 27 June 2018, https://bit.ly/2xoO19F; E-1490/2015, 13 March 2018, available at: https://bit.ly/2xoO19F.

[10] OSAR Guidelines are available at: https://bit.ly/2VZhqlc. Also, OSAR developed a detailed report on the decision-making and jurisprudence related to LGBTQI* asylum seekers.

[11] Article 3, para 2 AsylA.

[12]Article 5 AO1.

[13] Article 6 AO1.

[14] SEM Handbook on asylum and return, available at: https://bit.ly/2TRQv7Y, D2, p. 18.

[15] Federal Administrative Court, Decision D-7431/2018, 22 January 2019, available at: https://bit.ly/3aCQSdo; E-1805/2017, 26 September 2019, available at: https://bit.ly/38uay1G; D-2849/2017, 18 October 2019, available at: https://bit.ly/2PXGyom. In all these judgments, the FAC sent the case back to the SEM for a new assessment.

[16] Commission suisse de recours en matière d'asile (CRA), 16/1996, available at: https://bit.ly/2TNPj5K.

[17] Federal Administrative Court, Decisions E-3953/2016, 22 August 2019, available at: https://bit.ly/2xqOaJT; D-6998/2017, 8 July 2019, available at: https://bit.ly/2IxFBit; E-6865/2017, 17 April 2019, available at: https://bit.ly/2v62HJY. In all these cases the SEM decisions were quashed by the Federal Administratice Court.

[18] Federal Administrative Court, Decision D-6806/2013, 18 July 2016, available at: https://bit.ly/38ACZuL.

[19] Article 7(5) AO1.

[20]  Federal Administrative Court, Decision E-1928/2014, 24 July 2014, available at: https://bit.ly/2PXidze.

[21]  Federal Administrative Court, Decision E-7447/2015, 5 November 2018, available at: https://bit.ly/337u2Z0.

[22]  Federal Administrative Court, Decisions D-6508/2019, 18 December 2019, available at: https://bit.ly/38zH8z9; E-573/2016, 12 December 2018, available at: https://bit.ly/2TE2Yxn; E-6636/2017, 21 June 2018, available at: https://bit.ly/2TBnnTK; D-1520/2017, 5 April 2017, available at: https://bit.ly/38ytuwk.

[23]  UNHCR, Guidance Note on Refugee Claims relating to Female Genital Mutilation, May 2009 https://bit.ly/2TOHpcd.

[24]Federal Administrative Court, Decision E-6456/2015, 29 June 2018.

[25] Federal Administrative Court, Decision D-2314/2018, on Congo, para. 5.2.2; E-2497/2016, on Azerbaïdjan, available at: https://bit.ly/2Q0UBcW, para. 5.3.1; D-4923/2009, on Algeria, available at: https://bit.ly/2TElS7n, para. 4.2.3; D-7041/2013, on Morocco, available at: https://bit.ly/3cJ9E4D, para. 5.2; E-7217/2014, on Tunisia, para. 5.2.4; D-891/2013 on Iran, available at: https://bit.ly/3aDNtLq, para. 5.2. and 5.3; E-4373/2013, on Pakistan, available at: https://bit.ly/2PYaG39, para. 4.3.3; E-3952/2017, on Afghanistan, available at: https://bit.ly/2IvGWGq, para. 3.3. Very recent on the specific situation of bisexual persons in Morocco, D-5585/2017, available at: https://bit.ly/2VYOAkS. For a different approach, on Iraq, see D-6539/2018, available at: https://bit.ly/2Q0NOzN, para. 7.5.

[26] The CJEU case in point is X, Y and Z v. Minister voor Immigratie en Asiel (consid. 70 et 71). The SEM in its Handbook states officially that the discretion requirement is no longer applied in LGBTQI cases, but practice is not always correct. When it comes to the jurisprudence of the Federal Administrative Court, recent examples are the following: E-1842/2019, available at: https://bit.ly/2IxSCZC; E-3952/ 2017, available at: https://bit.ly/3cJJjU8; E-1490/2015, available at: https://bit.ly/2PZAWdk; D-7342/2017, available at: https://bit.ly/3cKSBz6; D-6635/2017, available at: https://bit.ly/2Ix5Q8P; D-5961/2017, available at: https://bit.ly/2Iz5KO4; D-6447/2017, available at: https://bit.ly/2Q0eaCh.

[27] Federal Administrative Court, E-2883/2019, 28 June 2019, available at: https://bit.ly/39F9tW0 and D-3064/2019, 11 July 2019, available at: https://bit.ly/339uqWL. See also, more positive, D-3501/2019, 21 August 2019, available at: https://bit.ly/39G6bC0 and E-2461-2462/2019, 12 November 2019, available at: https://bit.ly/2xgnuLw.

[28] Federal Administrative Court, D-2759/2018, 2 July 2018, available at: https://bit.ly/3cJdf2D; D-2341/2019, 22 October 2019, available at: https://bit.ly/2vaYaGi; D-2759/2018, 2 July 2018, available at: https://bit.ly/39G6zjW.

[29] Federal Adminitrative Court, D-3471/2019, 23 July 2019, available at: https://bit.ly/2v6NSqx.

[30]  Federal Administrative Court, D-3292/2019, 1 October 2019, available at: https://bit.ly/2TUFy5w.

[31] Information provided by the SEM.

 

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