Switzerland - Federal Administrative Court, A. (Eritrea) v. Secretary of State for Migration (SSM), March 4th 2019, E-7333/2018
| Country of Decision: | Switzerland |
| Country of applicant: | Eritrea |
| Court name: | Federal Administrative Court |
| Date of decision: | 04-03-2019 |
| Citation: | Federal Administrative Court, E-7333/2018 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
When deciding upon an asylum applicant’s age, authorities should assess the evidence in a holistic way, and not rely solely on medical examinations of the applicant. If, in the absence of sufficient evidence, authorities conclude that the applicant is an adult, they need to justify their decision by reference to the grounds for its conclusion.
Facts:
The applicant, presenting himself as an unaccompanied minor, came from Eritrea to Switzerland, where he asked for asylum on June 20 2016. The SSM, being sceptical of the applicant’s age, initiated an analysis of his bone structure ( on the left hand) which found that his biological age was eighteen.
The applicant claimed that he did not possess any kind of identification document apart from a baptism certificate. The SSM set a birthdate amounting to civil age of majority for the applicant. It estimated that the asylum applicant had insufficiently proved his alleged minority, and based its decision on the absence of official identification documents, as well as on the applicant’s physical appearance and the results of the bone analysis.
Subsequently, on November 19th 2018, the SSM rejected his asylum application and ordered the applicant’s removal from Switzerland. It considered that the applicant had not credibly demonstrated his need for international protection status.
On November 21st 2018, the applicant lodged an appeal against this decision before the Federal Administrative Court, requesting its withdrawal.
Decision & reasoning:
The FAC started by enumerating the legal and jurisprudential rules governing proof of an asylum seeker’s minority. It noted that the SSM had to give a preliminary ruling on that matter, before designating a support person for the rest of the proceedings if the applicant is a minor.
The FAC recalled that, in the absence of official identification documents, the SSM had to make an overall assessment of the asylum seeker’s age, taking into account every element supporting or rejecting their minority. It emphasised that the minority will be recognised if it is seen as ‘likely’ under article 7 of the Swiss June 26th 1998 Law on Asylum (LAsi).
It is the SSM’s responsibility to determine the party’s age by asking targeted questions about, inter alia, their life course, academic and/or professional background. The FAC considered that neither physical appearance nor the bone analysis were of strong probative value when the applicant’s age was presumably above fifteen. It also noted that such results could not cast doubt on the applicant’s alleged age, unless the claimed age and the estimated age differed by three years or more.
This led the FAC to conclude that solely the results of the left hand bone analysis, combined with an evaluation of the applicant’s physical apperance, could not per se lead the SSM to establish the applicant’s majority without making an overall assessment of all elements provided.
The SSM’s appreciation in the present case was therefore arbitrary. The Court reiterated that the SSM had to justify and explain every decision, by mentioning the issues of fact and law that led to it. Yet, the SSM’s rejection did not contain such an explanation. It therefore followed that the SSM had violated its duty to state reasons for its decision.
Outcome:
Appeal granted.
Subsequent proceedings:
This decision is final and is not subject to appeal.
Observations/comments:
While established case law exists on the procedure to be used in establishing the age of a young person claiming to be a minor, the auditors of the SSM regularly deviate from these principles in their decisions. The consequences for the young person, and the outcome of the procedure, can be considerable.
The judges of the Federal Administrative Court overturned several decisions of the SSM on that matter in the past year. It recalled the rules of procedure and warned the SSM against its flawed decisions.
For another example on the topic, see TAF E-1353/2019, available in french here.
In collaboration with other organisations supporting unaccompanied minors in Switzerland, the OSAR has drawn up a list of the fundamental elements that authorities should take into account when adressing this issue. The list includes the most recent guidelines and recommendations at international and European level. It is available in English here.
This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Domestic Case Law Cited
Federal Administrative Court, April 26th 2018, E-6368/2016
Federal Administrative Court, August 8th 2018, E-891/2017
Federal Administrative Court, April 12th 2011, E-809/2011
Other Sources cited
CHAUMOÎTRE, COLAVOLPE, MARCIANO- CHAGNAUD, DUTOUR, BOETSCH, LEONETTI, PANUEL, Utilisation de l’atlas de Greulich et Pyle dans un but médico-légal : pertinence et limites, in : Journal de Radiologie, volume 88, no 10, octobre 2007, p. 1544, available at: www.sciencedirect.com/science/article/pii/S0221036307817574
Emanuele Sironi/Joëlle Vuille/Franco Taroni, Estimation forensique de l’âge des jeunes migrants, Une note sur la scientificité des méthodes employées en Suisse, in : Jusletter, 8 octobre 2018
MARCEL MAILLARD, commentaire ad art.63 PA, in : Praxiskommentar VwVG, Waldmann/Weissenberger [éd.], 2ème éd., 2016, no 14, p. 1314