Switzerland - A., B., C. (Nigeria) v State Secretariat for Migration, 17 December 2019, No. E-962/2019
| Country of Decision: | Switzerland |
| Country of applicant: | Nigeria |
| Court name: | Federal Administrative Court |
| Date of decision: | 17-12-2019 |
| Citation: | Federal Administrative Court, A., B., C. v State Secretariat for Migration, 17 December 2019, No. E-962/2019 |
Keywords:
| Keywords |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Accommodation centre
Description
Any place used for the collective housing of asylum seekers. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
In view of article 3 of the European Convention on Human Rights, Swiss authorities should obtain formal and detailed guarantees on care and accommodation from the Italian authorities before transferring families and vulnerable persons to Italy under the Dublin III Regulation.
This is because Decree-law 113/218 on Public safety and Immigration in Italy has deeply reformed the Italian refugee reception system.
Facts:
The applicant, a Nigerian national, had left her country for Italy in 2010, where she entered into a civil marriage with a Nigerian citizen in 2015. She had never sought asylum in Italy. On July 25th 2018, she left the country for Switzerland with her daughter, after having been physically assaulted by her husband on multiple occasions. That same year, she gave birth to her second child.
On August 15th 2018, the Swiss State Secretariat for Migration (SSM) submitted a take charge request to the Italian authorities, in accordance with article 12, paragraph 1 of the Dublin III Regulation (n° 604/2013).
After having failed to respond to this request within the period specified by article 22, paragraph 1 of the Dublin III Regulation, Italy had become responsible for examining the application for asylum. Italy formally accepted this responsibility, and on February 14th 2019, the SSM – considering that there were no systemic flaws in the Italian reception system for asylum seekers – ordered the applicants’ transfer to Italy, under article 12 paragraph 1 of the Dublin III Regulation.
On February 25 2019, the applicants appealed to the Federal Administrative Court (FAC) against the SSM’s decision.
Decision & reasoning:
Article 3, para. 2 of the Dublin III Regulation
The FAC had to examine whether there were, under article 3 paragraph 2 of the Dublin III Regulation, systemic flaws in the Italian asylum procedure and reception conditions for applicants in Italy.
The SSM estimated that there were no substantial grounds for believing that there were such deficiencies in the Italian asylum system.
The FAC noted that Decree-Law 113/2018 of October 5th 2018 (also known as the ‘Salvini Decree’), had brought about important changes in the Italian asylum system, especially regarding the repeal of the humanitarian protection status, the newly established reception system, as well as difficulties in access to healthcare and the protection of vulnerable individuals (for more information, see Observations below). :
The Court concluded that, even though there were several obstacles impeding immediate access to asylum procedures and to adequate reception services in Italy, the Italian asylum system was not per se characterised by ‘systemic flaws’ which would expose applicants to the treatment prohibited under article 3 of the ECHR.
The FAC thus considered that article 3 paragraph 2 of the Dublin III Regulation did not apply in that case.
Article 17, para. 1 of the Dublin III Regulation
According to article 17, para. 1 of the Dublin III Regulation, a Member State can examine a claim for international protection even when it is not responsible for said examination, and, if necessary, the transferring State should suspend the transfer for as long as the applicant’s situation, or the destination country’s conditions, do not allow such a transfer.
The FAC mentioned the 2014 Tarakhel ECHR case, where the Court stated that the reception conditions in Italy did not per se prevent returns of asylum seekers to this country – while noting that there remained ‘serious doubts’ about the Italian asylum system and required that swiss authorities obtained formal guarantees by Italian officials that applicants (and particularly families and vulnerable persons) would be received in specific, suitable facilities.
In the same judgement, the European Court had found that, because of the special measures required by States for vulnerable persons and, in particular, families with young children, the transferring State must obtain individual guarantees that the care system will cater for young children’s special needs and will preserve family unity. In failing to do so, the Swiss authorities would violate article 3 of the ECHR.
Because the applicants constituted a particularly vulnerable group in the present case, the Swiss authorities, before transfering the asylum seekers to Italy, were required to have at their disposal sufficient evidence concerning the specific structure of the destination, the accommodation conditions, and the preservation of family unity.
The SSM had found that the January 8th 2019 Circular (in which the Unit claimed that first reception centers ‘guaranteed the protection of fundamental rights’) was sufficient in providing the Swiss authorities with concrete guarantee regarding family accommodation in Italy.
However, the Federal Administrative Court - observing that the Circular neither mentioned the number of places reserved for families, nor provided any detail regarding the concrete, material care system in force in the first reception centers – concluded that the Swiss authorities did not, as required by the ECHR in the Tarakhel case, have sufficiently concrete and precise guarantees on the reception conditions for families in first reception centers in Italy.
It therefore considered that the transfer could not take place. The SSM’s decision was annulled.
Outcome:
Appeal granted.
Subsequent proceedings:
This decision is final and is not subject to appeal.
Observations/comments:
The Presidents of the FAC Courts decided, on Januart 15th 2020, to publish this decision as an ‘Arrêt de référence’ (‘Classic judgement’). In assessing the risk upon return the Court considered the following:
- With regard to the formal asylum procedure in Italy after the Salvini Decree, the FAC mentioned the repeal of humanitarian protection status provided to asylum seekers on serious grounds, as well as the numerous practical obstacles preventing or delaying access to asylum procedures in some instances.
- With regard to the structure of the welcome system, the Decree has abolished the ‘second reception’ (Sistema di protezione per richiedenti asilo e rifugati) special measures which applied to vulnerable asylum seekers (such as families) and replaced it with the ‘Protection system for those enjoying international protection’. The decree thus established two separate reception systems for asylum seekers and protection holders. The former can now only be accomodated in first reception centres. The FAC also noted that the services provided in first reception centers are basic and essential, and there are no specific services for the most vulnerable. Families with minor children are no longer subject to specific reception arrangements, and are accomodated in the same facilities as all other asylum seekers.
- With regard to access to health care, the FAC said that despite the changes brought about by the Salvini Decree, asylum seekers retain their right to access all services offered in Italy under the National Health System (Sistema Sanitario Nazionale), even though such access may sometimes be impeded by administrative imperatives.
- With regard to specific guarantees for vulnerable persons, the FAC observed that the cuts in the funding of public services in first reception centers rendered the identification and protection of vulnerable persons more precarious.
This follows a 2019 Report by the Swiss Refugee Council (OSAR), which raised awareness against asylum seekers’ situations in Italy. The report estimated that since the application of the Salvini Decree, Dublin returnees did not have access to decent accommodation, and that fundamental rights were no longer guaranteed. As a result, the OSAR called for an immediate and complete stop of the transfers to Italy.
An english version of the report is available at : https://www.osar.ch/assets/herkunftslaender/dublin/italien/200121-italy-reception-conditions-en.pdf
This summary was written by Sinéad Gough, LLM student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Other sources:
Domestic Case Law cited:
Switzerland - Federal Administrative Court, March 12th 2015, A v. Secretary of State for Migration, n° C-7294/2013
Other Member States' Case Law cited:
Germany - Constitutional Court, October 10th 2019, 2 BvR ,12380/19
Other Sources cited:
Jean-Pierre Monnet, La Jurisprudence du Tribunal Administratif Fédéral en matière de transfert Dublin, in Schengen et Dublin en pratique- Questions Actuelles, 2015, p. 373
Moor/Poltier, Droit administratif, vol. II, 3ème éd., 2011, p.820 et s.
UNHCR, Italy Weekly Snapshot – 27 Oct. 2019: https://data2.unhcr.org/en/documents/download/72015
UNHCR, Fact Sheet Italy, September 2019:
https://data2.unhcr.org/en/documents/download/71858
UNHCR, Italy Operational Update, December 2018, https://data2.unhcr.org/en/documents/download/67557
Consiglio Italiano per i Rifugati (CIR), Aggiornamento dati e satistiche su asile e immigrazione, 17 octobre 2019 : http://www.cir-onlus.org/wp-content/uploads/2019/10/Dati-asilo-e-immigr azione-ottobre-2019.pdf
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http://www.libertaciviliimmigrazione.dlci.interno.gov.it/it/documentazione/statistica/cruscotto-statisti co-giornaliero
European Stability Initiative [ESI], The Italien Magnet, mars 2018, www.esiweb.org/pdf/ESI core facts The Italian Magnet - 13 March 2018.pdf
Asylum Info Database [AIDA], Country Report : Italy, 2018 Update, avril 2019, p. 29 s:
www.asylineurope.org/sites/default/files/report-download/aida_it_2018update.pdf
OSAR, Situation actuelle pour les personnes requérantes d’asile en Italie, mai 2019, p. 8: www.osar.ch/assets/herkunftslaender/dublin/italien/190517-auskunft-itali en-fr.pdf
ECRE, Italy: List of 13 Safe Countries of Origin to Boost Return Policies, 11 octobre 2019 : https://www.ecre.org/italy-list-of-13-safe-countries-of-origin-to-boost-retu rn-policies/
ECRE, Italy: Latest Immigration Decree Drops Protection Standards, 26 septembre 2018,
Borderline-Europe, 25 septembre 2018, Italien: Salvinis Dekret der Asylrechtsverschärfungen, https://www.borderline-
europe.de/sites/default/files/projekte_files/2018_09_25_Italien-Salvinis%2 0Dekret der Asylrechtsverschärfungen_JIAN_0.pdf
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ASGI, Le Sezioni Unite della Cassazione bocciano il Decreto sicurezza, 14 novembre 2019, https://www.asgi.it/asilo-e-protezione- internazionale/cassazione-decreto-sicurezza/
AIDA, Access to protection in Europe : The registration of asylum applications, octobre 2018, p. 17, http://www.asylumineurope.org/sites/default/files/shadow-reports/aida_ accessii_registration.pdf
OSAR, Conditions d’accueil en Italie, août 2016, p. 20 s., https://www.osar.ch/assets/news/2016/160908-sfh-bericht-italien-f.pdf
Médecins sans frontières [MSF], Fuori campo, février 2018, p. 2 et 36, https://www.medicisenzafrontiere.it/wp-content/uploads/2018/06/Fuoricampo2018.pdf
Danish Refugee Council et OSAR, Mutual Trust is still not enough, décembre 2018, https://www.osar.ch/assets/herkunftslaender/dublin/italien/monitoreringsrapport-2018.pdf
Ministère italien de l’intérieur, Le risposte per conoscere il nuovo decreto, www.interno.gov.it/sites/default/files/allegati/decreto_immigrazione_e_sicurezza_definitivo.pdf
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