Switzerland - Federal Supreme Court, Decision dated 26 April 2017, 2C_1052/2016, 2C_1053/2016

Facts:

The appellants A.A. and B.A., both Afghan nationals, came, accompanied by their three minor children, to Switzerland via Norway and Germany. Upon arrival in Switzerland, they sought asylum, which was refused by the Swiss Ministry for Migration (Staatssekretariat für Migration [SEM]) and this decision was upheld by an appeal to the Federal Administrative Court. The mother was eight-months pregnant when arriving in Switzerland with the fourth child.

On 5 October 2016, following an attempt to return the family to Norway, the mother and her newborn child were detained in the airport prison in Zurich, while the father was taken into detention pending deportation in Zug. The three minor children were placed in a children’s home. On the same day, the authorities imposed administrative detention (so called ‘Dublin-detention’) upon A.A. and B.A. to secure the transfer procedure. The appellants requested the competent administrative court to review the detention, to rescind the orders dated 5 October 2016 and to order immediate release. The judge at the administrative court confirmed the six-weeks detention orders. On 25 October 2016 the whole family was returned to Norway.

The appellants appeal against the orders of the administrative court to the Federal Supreme Court. They, in particular, claim to have had their rights under Art. 3, Art. 5 Nr. 1 and Art. 8 European Convention of Human Rights (ECHR) violated.

Decision & reasoning:

In a first step, the Federal Supreme Court decides that the fact that the appellants have already been returned to Norway does not eliminate the legal interests of the appeal. The lack of legal interest is irrelevant in cases, where the legal questions raised could occur again at any time under similar circumstances, a timely judicial review would rarely be possible and where the legal question is of high relevance and of public interest. This is, in particular, the case where ECHR rights such as in the present case are at stake.

Violation of Art. 3 ECHR

The Federal Supreme Court examined whether the separate detention of the family members amounts to a violation of Art. 3 ECHR. Read in conjunction with Art. 1 ECHR, Art. 3 ECHR obliges contracting states to ensure that persons in need of protection such as families with minor children or unaccompanied minors are not subjected to any inhumane or degrading treatment. The detention of minors can potentially violate the rights of the minor as well as the rights of close family members of the minor. The appeal in the present proceedings was only lodged by the parents for violations of their own rights and not (even implicit) representation of their children, thus only violations of Art. 3 ECHR with regards to the parents must be assessed. According to the caselaw of the European Court of Human Rights (ECtHR), close family members may invoke a violation of their ECHR rights, if the following criteria have been taken into consideration: a close relationship between the minor and the family member, the modalities of how the family member became a witness of the treatment of the child and the reaction of the authorities on the claims of the family member.

The Federal Supreme Court acknowledges that the appellants were exposed undoubtedly to a significant level of stress due to the situation and the limited ways of communicating with each other, however, held that this does not (yet) amount to a violation of Art. 3 ECHR.

Violation of Art. 5 Nr. 1 ECHR

Furthermore, the appellants claim that their deprivation of liberty was not based on any of the grounds set out in Art. 76a Foreigners Act (Ausländergesetz [AuG]). The provision allows detention to secure the return decision under the Dublin system only, if there are concrete indicators that the person concerned poses a risk of absconding, the detention is proportional and no less intrusive measures could be used. Art. 5 Nr. 1 lit. f ECHR allows deprivation of liberty of a person against whom action is being taken with a view to deportation or extradition. In the present case, the Federal Supreme Court refrains from ruling on the legality of the detention with regards to Art. 5 ECHR as the appeal was allowed on the basis of a violation of Art. 8 ECHR.

Violation of Art. 8 ECHR

With regards to Art. 8 ECHR, the Federal Supreme Court confirms that the situation in the proceedings before the Court falls within the scope of Art. 8 ECHR. It held that in principle the detention of families with minor children may be justified in certain circumstances, however, this can not be interpreted as freeing a State from its obligations under Art. 8 ECHR. A State who commits children under 15 years to a children’s home causes a situation where these children must be seen as being unaccompanied and thus opposes to the obligation to create family unity. Such an interference can only be justified if the conditions of Art. 8(2) ECHR apply, in particular, the principle of proportionality. The detention must only be used ultima ratio and the State has to thoroughly assess whether less intrusive measure cannot be applied. The best interest of the child has a significant value in this assessment. In the present case, the Federal Supreme Court held that the Swiss authorities have not sufficiently assessed whether less intrusive measures such as the accommodation in local properties or rented spaces or the accommodation in an institution for unaccompanied minors could have been applied. Consequently, the Court found a violation of Art. 8 ECHR and allowed the appeal.

Outcome:

The Federal Supreme Court allows the appeal and rescinds the orders of the administrative court dated 16 October 2016. It, moreover, confirms that the appellants have been unlawfully detained.

Observations/comments:

Case summary written by Chad Heimrich (LLM candidate, Queen Mary University of London).

Other sources:

Report dated 7 March 2014 on the implementation of Dublin/Eurodac (Botschaft vom 7. März 2014 über die Genehmigung und die Umsetzung der Notenaustausche zwischen der Schweiz und der EU betreffend die Übernahme der Verordnungen [EU] Nr. 603/2013 und [EU] Nr. 604/2013), BBl 2014 2694