CAT - N.H. v. Switzerland, Communication No. 1024/2020, 30/04/2025

Facts:

The complainant is an Eritrean national living with his father, who ran a warehouse and had previously worked as a guard for the Eritrean authorities. His father informed the authorities he could no longer do his work as a guard due to his age and health, which resulted in his imprisonment and the closure of his store by the authorities. In protest, the complainant took part in writing a letter against the practices of the authorities. This letter was then published in a public place. After two of his companions got caught, the then 16-year-old applicant started evading the police. This resulted in him starting a journey through Ethiopia, Sudan, Libya, and Italy. After his stay in Italy for approximately eight months, he was granted entry by Switzerland as an unaccompanied minor asylum-seeker under the Dublin III Regulation and applied for asylum there.

Given the presence of his elder sister in Switzerland, the State Secretariat for Migration accepted jurisdiction over his claim and interviewed him on two different occasions. The State Secretariat rejected his asylum application as they found contradictions on key elements of his submission. The contradictions during these two hearings concerned whether his father had refused to carry a weapon initially or had been a serving armed guard seeking retirement. The State Secretariat further examined his claims, finding that his fear of military conscription was not well-founded, as he had never had direct contact with Eritrean military authorities, and that illegal departure from Eritrea as suchwas unlikely to expose him to persecution meeting the threshold of serious harm under Swiss asylum law. The complainant then appealed and requested partial legal aid and representation. After a prima facie examination of his arguments, the Federal Administrative Court found the appeal was bound to fail and thus decided to deny legal aid and asked him to cover legal costs. The complainant’s subsequent request to review this decision was declared inadmissible.

Decision & reasoning:

The complainant argued that his deportation to Eritrea would violate Articles 3 and 16 of the Convention, as he faced a real risk of torture or a situation amounting to cruel, inhuman and degrading treatment when returning. This risk is based on two grounds: his public criticism of the Eritrean regime through the letter, and his illegal departure from Eritrea while being of conscription age. He stated that upon return he would face an arrest and be conscripted into national service, where he would be subjected to forced labour and slavery. This argumentation of the complainant is supported by documentation of, among others, the UNHCR. In this light, the complainant argued that there is a real risk of treatment contrary to Article 3 of the Convention. The complainant further criticised the Swiss practice towards Eritreans since 2016 and argued that him being required to pay advance legal costs denied him of an effective remedy before the Federal Administrative Court.

Referring to M.O. v. Switzerland, the State Party recognized the human rights situation in Eritrea as being concerning, while arguing that this general situation in Eritrea is not sufficient to conclude that the complainant would face the risk of being tortured when returning. Switzerland further pointed towards tools to potentially regularize status, like paying a diaspora tax and signing a letter of regret. Furthermore, it is acknowledged that Eritreans cannot be forcibly returned due to the lack of a readmission agreement. At last, regarding the right to an effective remedy, the State Party submitted that legal aid was properly refused following the assessment.

The Committee first called to mind that Article 3 of the Convention requires an effective, independent, and impartial review of any expulsion decision where a plausible allegation of risk arises. The Committee found that the Federal Administrative Court had only conducted a brief, summary assessment of the complainant's arguments while questioning his credibility. The Committee continued by noting some concerns. Firstly, even the State Party acknowledged that there is little, reliable information on the treatment of persons returning to Eritrea after illegal departure. Secondly, while the State Party accepted that the complainant would likely perform national service upon return, it admitted that ill-treatment is frequent, mainly in the military sector. Thirdly, the suggestion to regularize status by paying a diaspora tax was found to be problematic as the Security Council condemned that tax.

The Committee further noted that the human rights situation in Eritrea remains very bad. Based on the 2018 report of the UN Special Rapporteur, the Committee noted that the national service amounts to the enslavement of an entire population and the report of 2024 indicates the situation remains dreadful.

The Committee thus noted that these potential risks justify a more thorough examination than a simple summary assessment by the Federal Administrative Court. Moreover, the requirement to pay legal costs in advance, despite his financial hardship, effectively denied the complainant access to a proper judicial review. At last, the Committee mentioned that around 1/3 of all appeals filed without legal aid ultimately succeed according to its concluding observations on the State Party.

Outcome:

In the light of the foregoing, the Committee, acting under article 22 (7) of the Convention, concludes that the return of the complainant to Eritrea without examination of his appeal against the decision of the State Secretariat for Migration would constitute a procedural breach of article 3 of the Convention. Having reached that conclusion, the Committee does not consider it necessary to examine the claim of a substantive violation of articles 3 and 16 of the Convention.

Observations/comments:

This summary was written by Warre Roelants during her participation in the Migration Law Clinic of Gent University.

Other sources:

M.G. v. Switzerland, CAT/C/65/D/811/2017, 7 December 2018.

United Nations Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Eritrea, A/HRC/38/50, 25 June 2018.

United Nations Human Rights Council, Situation of human rights in Eritrea: Report of the Special Rapporteur on the situation of human rights in Eritrea, A/HRC/56/24, 7 May 2024.