Federal Administrative Tribunal (Court V), A. v. SEM, 28th October 2020, E-3822/2019
| Country of Decision: | Switzerland |
| Country of applicant: | Eritrea |
| Court name: | Federal Administrative Tribunal with the judges Emilia Antonioni Luftensteiner (president), David R. Wenger, Camilla Mariéthoz Wyssen, Susanne Genner, Muriel Beck Kadima. |
| Date of decision: | 28-10-2020 |
| Citation: | Federal Administrative Tribunal (Court V), A. v. SEM, 28th October 2020, E-3822/2019 |
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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Circumstances ceased to exist
Description
A significant and non-temporary change in circumstances as provided for in Article 11(e) or (f) of the Qualification Directive such that a refugee's fear of persecution can no longer be regarded as well-founded or as provided for in Article 16 such that the person eligible for subsidiary protection no longer faces a real risk of serious harm, and which may lead to cessation of refugee status or cessation of eligibility for subsidiary protection. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
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Integration measures
Description
Member Statemeasures intended to further the integration of immigrants into their host communities. Per Art. 7(2) FRD Member States may require third country nationals to comply with integration measures, in accordance with national law. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The State Secretariat of Migration (SSM) is obliged to assess the proportionality of a cessation measure in a case of a granted temporary residence in Switzerland. It was concluded that the cessation of temporary residence is not proportionate, when the applicant showed considerable efforts to integrate in the host community such as learning languages and practicing several internships to obtain a job in that country. His return would hamper all those integration efforts.
Facts:
On 29th of July 2015, the applicant made an international protection request.
On 17th of October 2016, the State Secretariat of Migration (SSM) denied the applicant’s request for refugee status. It noted the lack of credibility of the applicant’s declaration and the lack of evidence to prove the existence of risk of persecution. Consequently, the SSM ordered the return in his country of origin. However, it granted a temporary residence to the applicant in Switzerland due to the Eritrea situation and the applicant’s personal circumstance and suspended the effective the applicant’s return.
On 10th of November 2018, the applicant introduced a remedy against the SSM’s decision. Later, on 8th of June 2018, the Federal Administrative Tribunal (FAT) rejected the remedy and confirmed the national administration’s decision.
On 28th of June 2019, according to the FAT’s judgement of 17th August 2017, the SSM ordered the end of the temporary residence of the applicant considering the applicant’s return to Eritrea as reasonable at this moment. The SSM’s argued that the applicant would not face danger in case of return to his country of origin anymore. The SSM’s considered its decision proportionate because of the lack of integration of the applicant in Switzerland. Furthermore, the SSM argued that the applicant would be able to reintegrate Eritrea.
On the 25th of July 2019, the applicant introduced a remedy against the SSM’s decision on the cessation of the applicant’s temporary residence in Switzerland before the FAT.
Decision & reasoning:
The Federal Administrative Tribunal (FAT) assessing the SSM’s decision, focused its reasoning on two aspects. First, the FAT assessed the changes of situation in Eritrea, (judgment of 17th August 2017) and found that the applicant’s return to Eritrea was due, possible, and lawful.
The FAT continued its reasoning by assessing whether the decision of cessation of temporary residence was proportionate. In this regard, on the one hand, the FAT addressed the criteria to be used when assessing the effective integration of the applicant in Switzerland. On the other hand, the FAT emphasized the consequences of any cessation of temporary residence for the applicant.
Hence, The FAT stressed several aspects such as the languages courses followed by the applicant; the practice of several internships to obtain a job; the quality of his work during his learning and lastly the respect of the Swiss public order with a clean criminal record. Besides, the FAT observed the good grades of the applicant in his learning to become an electrician and his successful graduation to the second year of his formation. In this regard, the FAT confirmed the likely failure of his professional integration into the labour market if the applicant must return to his country of origin. Furthermore, the FAT stressed the loss of his potential financial autonomy. In addition, the FAT underlined the necessity for the applicant to start over in a new sector of labour. Consequently, the FAT concluded that the applicant’s return would lead to the annulment of all his efforts to reach a successful socio-economic integration in Switzerland.
Outcome:
The temporary residence of the applicant was maintained.
Subsequent proceedings:
The SSM could go on appeal against the FAT’s decision before the Supreme Federal Tribunal.
Observations/comments:
This case summary was written by Alexandre Piérard, LLM student at UGent.