Switzerland – Federal Administrative Court, 17th May 2017, D-2925/2016
| Country of Decision: | Switzerland |
| Country of applicant: | Iraq |
| Court name: | Federal Administrative Court |
| Date of decision: | 17-05-2017 |
| Citation: | D-2925/2016 |
Keywords:
| Keywords |
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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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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, 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, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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." |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
A waiver to file an appeal against custody prior to deportation is only possible under strict conditions. Particularly there has to be a qualified legal representation when signing the waiver.
The risk of absconding in the sense of Art. 76a Residence Act cannot be assumed because of the mere fact that another state is responsible for the asylum procedure of that person.
Facts:
The complainant applied for asylum in Switzerland on the 9th of March 2016. After a hearing, the State Secretariat for Migration’s (SEM) denied his application pursuant to Art. 31a (1) b of the Asylum Act and ordered his expulsion to Belgium. Moreover, the complainant signed a waiver renouncing his right to appeal.
The SEM ordered the detention pending deportation of the complainant under Art. 76a of the Residence Act.
Subsequently the applicant filed a complaint at the Federal Administrative Court, challenging the detention and demanding instant release.
Decision & reasoning:
The complaint was successful. The court ordered the instant release of the complainant.
The court started by declaring that the waiver is void regarding the complaint at hand. There are high requirements for such a waiver renouncing procedural rights. In particular the signer has to be granted by a qualified legal representation when signing the waiver.
The judge continued by explaining that according to Art. 109 (3) Asylum Act, the first judicial review on the detention pending deportation has to be granted immediately. Therefore, the court has to decide within 5 days after the filing of the complaint.
According to Art. 28 (4) Dublin III Regulation read in conjunction with Art. 9 (4) of the Directive 2013/33/EU of the European Parliament and of the Council of 25 June 2013 laying down standards for the reception of applicants for international protection, it is obligatory to inform the complainant in writing of the possibility to make use of free legal consultation. However, the court left the legal consequences of the missing information undetermined as the complaint is successful anyhow.
The Federal Court of Administration continued by considering the requirements of Art. 76a Residence Act, which allows the detention pending deportation within the Dublin process under certain circumstances. Among other requirements, Art. 76a (1) states that in order to detain a person, there have to be specific indications of the person’s intention to evade the transfer. The mere fact that another state is responsible for the asylum procedure under the Dublin III Regulation is not sufficient to detain a person. The danger of absconding cannot be assumed on that basis.
In the case at hand, there are indications against the risk of absconding. The complainant provided detailed information about his journey and declared he will not resist his transfer to Belgium. Furthermore, the complainant is merely challenging the detention, not the denial to grant asylum. Therefore, the court concluded that there is no risk of absconding.
The complaint was successful.
Outcome:
The complaint was successful. The court ordered the instant release of the complainant.
Observations/comments:
This case summary was written by Tim Drunkenmölle.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Switzerland - - Art. 31a (1) Asylum Act |
| Switzerland - - Art. 108 (4) Asylum Act |
| Switzerland - - Art 76a Residence Act |