Switzerland - Federal Administrative Court, Case No. E-6310/2017, 15/01/2020
| Country of Decision: | Switzerland |
| Country of applicant: | Somalia |
| Court name: | Federal Administrative Court |
| Date of decision: | 15-01-2020 |
| Citation: | E-6310/2017 |
Keywords:
| Keywords |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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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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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. |
| Collective expulsions |
Headnote:
The case examines whether the rejection of the complainant’s application for asylum is lawful and if he may be deported. He can only be deported if he does not face inhuman or degrading treatment in his country of origin. In addition, his social networks and the possibility of a basis for subsistence are relevant.
Somalia is classified as a country which in general is safe. An impermissible expulsion depends on the applicant’s personal circumstances, persecution and risk of harm in his country of origin.
Facts:
The complainant is from the autonomous state Puntland in Somalia. He left his hometown in May 2014 and applied for asylum in Switzerland in May 2015.
He based his application on the war between the government of Puntland and al-Shabaab. He claimed that al-Shabaab bombed his and his brother’s fields because they were accused of working with the government. Al-Shabaab arrested his brother. The complainant himself claims he was arrested by the government accused of working for al-Shabaab.
In his hearing, he claimed that he and his brother were arrested by the government and imprisoned as well as punished. He married in 2014. He left Somalia due to the lack of prospects for a good life.
On 20 May 2016, he informed the SEM of his intention to get married again. The social services informed the SEM on 8 August 2016 about the marriage between the complainant and a Somali woman living in another country. He answered the SEM´S questions and claimed that the marriage certificate is genuine even though the data in his papers is inconsistent. He wants protection in Switzerland until he can get a residence permit in the land his wife currently lives in.
By decision of 6 October 2017, the SEM rejected the complainant´s application for asylum due to lack of credibility, denied his refugee status and ordered his expulsion to Somalia. The complainant appealed on 7 November 2017.
Decision & reasoning:
In its ruling, the Federal Administrative Tribunal examines if the SEM´s position is lawful.
The Tribunal agrees with the SEM’s position regarding the complainant’s incredibility. It cannot be proved that al-Shabaab attacked the complainant as a target. The attack was a consequence of the war itself and not a result of personal persecution. In conclusion, the rejection of the asylum application and the subsequent expulsion is lawful according to the court. In the following, the court examines whether the implementation of the expulsion is possible, lawful and reasonable.
The implementation of the expulsion is unlawful under international law, if the complainant’s life, health and freedom are endangered in the country of destination. This doesn´t apply to the complainant’s case. Furthermore, there is no sufficient evidence that the complainant expects an inhumane punishment or torture corresponding to Art. 3 EMRK or Art. 1 FoK in Puntland. The expulsion is only unlawful if the complainant is able to prove a “real risk”. The human rights situation in Somalia is not enough reason for the expulsion to be classified as unlawful.
In addition, the Tribunal states that Art. 83 IV AlG doesn´t inhibit the expulsion. The United Nation’s missions and the work of several NGOs lead to an improvement of the economic situation in Somalia. Some refugees returned voluntarily to their country of origin. The complainant has family in Puntland which can help him to guarantee his subsistence. Furthermore, he is married to a Somali woman living in another country. Therefore, he might have a right of residence due to the marriage in that country. In addition, he is an adult and healthy. In conclusion, the expulsion is justified.
The claimant disagrees and refers to different reports that rank Somalia as unsafe. To the SEM and the court, those reports are not relevant since they observe a different region of Somalia. The expulsion to Puntland is lawful, especially if the affected person has options to ensure his subsistence or has family members in that region. Even though the Situation in Somalia is volatile, the Assessment of the “Asylrekurskommission” from 2006 is still applicable and an expulsion to Somalia is still lawful. Since there are only sporadic violent attacks in Puntland the overall situation cannot be classified as an escalation. Even though terrorist group IS is slowly shrinking and losing influence, the presence of al-Shabaab is rising. However, al-Shabaab does not have consolidated control of any parts of the country and its influence is limited. The humanitarian situation in Somalia is fragile due to armed conflict, severe drought and maladministration. Medical care is insufficient. However, the situation is improving and there is no concrete danger for the population in its entirety, which would justify the expulsion as unreasonable.
In conclusion, the court states that it is proven that the claimant’s country of origin is Puntland even though his papers and data are inconsistent. In addition, he still has relatives there and a good network of relationships which can help him to build a basis of existence there. In conclusion, the complainant is not endangered by the fragile situation in Somalia. There is no concrete danger within the meaning of Art. 83 Abs. 4 AlG. The implementation of the expulsion is therefore reasonable.
Outcome:
Appeal denied
Observations/comments:
This case summary was written by Nora Kirchhoff, student at Cologne University and member of the scientific work group of the Refugee Law Clinic Cologne.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR – Saadi v. Italy, Application No. 37201/06, 28 February 2008 |
| Switzerland - Federal Administrative Court, Case No. E-381/2013, 14/05/2013 |
| Switzerland - Federal Administrative Court, Case No. E-423/2009, 08/12/2009 |
| Switzerland - Federal Administrative Court, Case No. E-6220/2006, 27/10/2011 |
| Switzerland - Federal Administrative Court, Case No. D-5705/2010, 17/09/2013 |
| Switzerland - Federal Administrative Court, Case No. D-3622/2011, 08/10/2014 |
| Switzerland - Federal Administrative Court, Case No. E-4207/2006, 11/09/2008 |
Other sources:
Entscheidungen und Mitteilungen der schweizerischen Asylrekurskommission (ARK) - EMARK 2006.