Switzerland - Federal Administrative Court, 10 March 2016, D-5785/2015
| Country of Decision: | Switzerland |
| Country of applicant: | Eritrea |
| Court name: | Federal Administrative Court |
| Date of decision: | 10-03-2016 |
| Citation: | D-5785/2015 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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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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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.
Facts:
The applicant, an Eritrean national, travelled via Italy to Switzerland in May 2015 to reunify with her sister who is residing there. She stated that she was born in 1998 and should, therefore, be considered as a minor. The Swiss authorities questioned the stated age and initiated an analysis of the carpal bone with the result that her age was probably 18 or more years. Consequently, her application was refused by the Swiss authorities due to the lack of evidence concerning her minority and Italy was announced responsible for examining her asylum case. The execution of the removal and detention pending deportation was ordered. Shortly after her detentionshe had to be treated in an emergency hospital. Due to the threat of self-harm, she was not considered fit to withstand detention by the responsible physician. The applicant appealed the decision of the Swiss authorities to the Federal Administrative Court on grounds that she is an unaccompanied minor and therefore, according to Article 8 of the Dublin III Regulation, Switzerland is responsible for examining her asylum application.
Decision & reasoning:
The Federal Administrative Court discusses whether the applicant is an unaccompanied minor and whether Switzerland is responsible for examining the asylum application according to the Dublin III Regulation.
First the Court examines whether or not the applicant is a minor. Therefore the applicant bears the burden of proof. Even though the results of the analysis of the carpal bone stated that the applicant's age is probably older than 18 years, the Court considers the statements of the applicant credible and therefore she was considered as a minor according to Article 2 letter i Dublin III Regulation. The Court argues that the results of the analysis are limited in terms of authoritative value. The divergent result is within the range of the normal deviation. Only where there is a deviation of more than three years of age, the analysis is considered as evidence. This is not the case.
The Court reviews the statements of the applicant and concludes that the statement suggests that she is a teenager rather than an adult.
In Italy the complainant was registered with the date of birth in 1991 and the Italian authorities have tacitly agreed to the transfer. The Court finds, however, that this does not render her statements unbelievable. Young refugees entering Europe want to either find work quickly or travel to a different European country directly. Therefore pretending to be an adult keeps them from additional procedures.
Further, the statements of the applicant's sister were taken into consideration describing the applicant as minor.
Second, the Court examines Switzerland's responsibility for the asylum application. Usually the state of first entry is responsible except where the applicant can prove or at least substantiate her minority according to Article 6 and 8 of the Dublin III Regulation. Therefore the applicant, as an unaccompanied minor, must have a family member or sibling who is “legally present” according to Art. 8 para. 1 of the Dublin III Regulation. It was discussed whether or not the sister of the complainant was “legally present”, particularly under the consideration of the best interest of the child. With regard to the purpose of Art. 8 the Court notes that it must be assumed that no high demands can be made on the presumed legal presence of a relative of the child. As the applicant's sister has a legal residency status during the asylum procedure, the requirements of Art. 8 para 1 Dublin III Regulation are fulfilled.
The Court concludes that the applicant was still a minor and Switzerland is responsible to proceed with the request for asylum according to Art. 8 para 1 of the Dublin III Regulation.
Outcome:
Appeal granted and the contested decision must be annulled.
Observations/comments:
Noteworthy is that the judges argued from the point of view of the minor and considered her thoughts and aims when entering the EU (first entry Italy, afterwards Switzerland).Indeed, the best interests of the child was given as a main argument in the discussion on legal presence according to Art. 8 para. 1 Dublin III Regulation.
This case summary was written by Laura ThimmBraun.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Switzerland - Federal Administrative Court - E-5860/2013 |
| Switzerland - Federal Administrative Court, E-2612/2008 |