Switzerland – Federal Administrative Court, 18 July 2016, D-6806/2013
| Country of Decision: | Switzerland |
| Country of applicant: | Nigeria |
| Court name: | Federal Administrative Court (Bundesverwaltungsgericht) |
| Date of decision: | 18-07-2016 |
| Citation: | D-6806/2013 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
In cases of reasonable suspicion that a person applying for asylum was a victim of human trafficking, the Swiss State Secretary for Migration is obliged to clarify the facts thoroughly on its own initiative.
Facts:
The applicant is a Nigerian national who requested asylum in Switzerland in 2003.
In her hearing, the applicant said she had lost her parents at a young age and lived with her uncle from thereon who mistreated and forced her to marry a much older man. She was afraid of her husband, who, like her uncle, was a member of the secret society of Asigidi. The applicant asked a priest for help. The priest brought her to the red cross in Lagos from where she was flown to Switzerland.
The Swiss authority issued a decision on 1 October 2004 that the applicant was not entitled to asylum in Switzerland and ordered her expulsion.
In March 2008 the applicant was sentenced to 14 months suspended sentence for drug trafficking.
On 9 October 2013 the applicant requested to reopen the asylum procedure (“Wiedererwägungsgesuch”) and handed in medical certificates and a report about the Juju-cult in Nigeria. She claimed firstly to have suffered for years from mental illness combined with a somatic syndrome and that her treatment in Nigeria was not secured. Secondly, she claimed to have been sexually abused in Nigeria by a criminal network involved in trafficking human beings. They brought her to Europe and caused her noticeable scars in a Juju-ceremony that bound her to the traffickers and prevented her from cooperating with the police.
The request was rejected on 5 November 2013 stating that medical treatment was offered in Nigeria on a comparable level. Furthermore, Nigeria has laws on federal and state level prohibiting ritual practices designated to enforce personal interests, infringements being prosecuted by the Nigerian authorities.
The applicant appealed against the decision at the Federal Administrative Court on 3 December 2013.
Decision & reasoning:
The Federal Administrative Court examines extensively the connection between human trafficking, forced prostitution and the Juju-cult in Nigeria.
The Court first turns to the jurisprudence of the European Court of Human Rights (ECtHR) that established a state duty to protect people from human trafficking and a high level of protection in this field. Article 4 ECHR establishes a non-refoulement principle concerning human trafficking.
Art. 10 of the Council of Europe’s Convention on Action against Trafficking in Human Beings requires states to identify victims of human trafficking.
The Court observes that victims of human trafficking very rarely make known their situation or tell untrue / contradictory stories at first because they are intimidated and are therefore treated as unreliable by the authorities.
That is why various organisations have developed a list of factors helping the authorities indicating victims of human trafficking.
The Court shortly examines the situation in the European Union and then turns to Switzerland, noticing that agency staff dealing with asylum-seekers need to be sensitised to signs of human trafficking.
Afterwards, the Court elaborates the situation of the victims, the structures and procedure of human trafficking in Nigeria. Most Nigerian women who are victims of human trafficking are very young and come from the south of the country. They are brought to Europe under false promises and have to work off their (inflated) travel debts by prostituting themselves or selling drugs. Beforehand, victims have to swear an oath that is sealed and controlled by a “voodoo” or “juju” ceremony during which they are injured causing striking scars. The oath includes the obligation to pay off the debts and a vow of silence. The women have to hand over their passports to the traffickers as soon as they arrive in Europe. A so called “Madam” controls and accommodates them and takes their remuneration from them.
The main problem is the deeply rooted faith in supernatural powers and the fear of the consequences when breaking the oath. Because of this and because of a lack of support or even rejection by their families, women who have returned to Nigeria go back to Europe (“Re-Trafficking”). The psychological pressure of the oath keeps them from testifying against the perpetrators, making it hard for prosecution authorities to investigate the crime.
The inquisitorial principle (“Untersuchungsgrundsatz”) governs the asylum procedure. This means the competent authority has to find all the facts on its own initiative.
The right to be heard (“Rechtliches Gehör”) obliges the authority to thoroughly and genuinely examine and consider the submissions of the applicant.
Concerning the applicant, there were various hints indicating she was a victim of human trafficking: missing identity documents, originating from the main area of recruitment for human traffickers in Nigeria, travelling to Europe organised and financed by a third person, “Juju-scars”, being mistreated already as a child and suffering from a severe psychological disease. It remained unclear, if the applicant had sold drugs without getting paid, which also would have been a clue as to her victim status.
In conclusion, the Court finds that the previous instance had examined the facts inadequately, did not sufficiently take the submissions of the applicant into account and had therefore violated her right to be heard and the inquisitorial principle.
Outcome:
Appeal granted.
Observations/comments:
This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - O.G.O. v. the United Kingdom (no. 13950/12), 18 February 2014 |
| ECtHR - Rantsev v. Cyprus and Russia, Application no. 25965/04, 10 October 2010 |
| ECtHR - C.N. v. United Kingdom, no 4239/08 |
| ECtHR - V. F. v France – Application No. 7196/10 |
| ECtHR – L. O. v France, Application No. 4455/14, 26 May 2015 |
| ECtHR – M. and others v. Italy and Bulgaria, 31 July 2012, 40020/03 |
Other sources:
Council of Europe - Convention on Action against Trafficking in Human Beings, 15 May 2005
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organised Crime, 15 November 2000 (“Palermo-Protocol”)
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims
European Migration Network, Synthesis Report – Identification of victims of trafficking in human beings in international protection and forced return procedures, March 2014
Group of Experts on Action against Trafficking in Human Beings (GRETA), Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Switzerland, 14 October 2015