Switzerland – Federal Administrative Court, 9 December 2015, E-6261/2015

Facts:

The appellant emigrated in 2014 illegally with her son from Eritrea and entered the Suisse territory where she claimed asylum after she crossed through Ethiopia, Sudan, Libya and Italy.

In the course of an interview about her identity regarding the possibility of not further examining the application of asylum and a possible transfer to Italy, she claimed that she could not return to Italy with a child.

After the Italian authorities agreed to the State Secretariat for Migration’s (SEM) request to take the appellant back, the later ordered her transfer to Italy and its enforcement. At the same time it stated that a possible complaint would not have suspensive effect.

The complainant applied to the Federal Administrative Court for the decision of the SEM to be annulled and to instruct the SEM to continue the examination of the applications for asylum.

The request for the appeal to have suspensive effect had already been granted earlier. 

Decision & reasoning:

Firstly, the Federal Administrative Court derived its competence to make a final decision in the matter at hand from Art. 31 of the Administrative Court Act read in conjunction with Art. 5 and 32 et seq. of the Administrative Court Act as well as Art. 83 (d) No. 1 of the Federal Supreme Court Act.

Secondly, the Court made note that in the case of a complaint against a decision not to further examine an application for asylum its evaluation was limited to the question whether the previous instance decided so lawfully (cf.  Federal Administrative Court, 9 Feburary 2012, E-6490/2011 E.2.2).

Thirdly, the Court turns to the question whether the decision of the SEM that the transfer of the appellant was lawful was based on incorrect or incomplete facts. In this regard, it concluded that the SEM was right to assume that Italy was the responsible State under the Dublin-III-Regulation since the Italian authorities, firstly, implicitly, and further, explicitly, agreed to the Swiss request to take back. The fact that the agreement occurred after the time limit of two months (Art. 22(1) Dublin-III-Regulation) is in so far insignificant as also in the case of a lack of agreement there would have been an assumption of Italy’s responsibility (Art. 22(7) Dublin-III-Regulation).

Fourthly, the Court examines the permissibility of the complainant’s transfer to Italy under international law. In an earlier leading decision, based on the ECtHR’s Tarakhel judgement, it held that prior to a Dublin transfer of families with children to Italy an individual guarantee from the Italian authorities had to be sought that they will be provided with an accommodation which is appropriate for children and respects the unity of the family. Such guarantee was not only a modality of the transfer but a material prerequisite for the permissibility of the transfer under international law (cf. Federal Administrative Court, 12 March 2015,
E-6629/2014). This requires that there is a concrete and individual assurance at the time of the decision of the SEM, in particular stating the names and ages of the individuals concerned.

This prerequisite of an individual assurance also requires that the assurance is up to date. This requirement is not met in the case at hand since the decision of the SEM is based on a six months old general assurance of the Italian authorities that appropriate accommodation will be provided for, indicating the number of available places in the regions of Sicily and Calabria. This is particularly true since one has to expect that the reception centres in the regions concerned are particularly busy due to their geographical location. Furthermore, since there are no names given the assurance is not concrete enough.

Due to the insufficient guarantee, the facts relevant for deciding on the question whether the transfer of the appellant is compatible with Art. 3 ECHR have not been sufficiently evaluated. Therefore, the case is referred back to the previous instance for further clarification. 

Outcome:

Appeal granted. The decision of the SEM of 22 September 2015 was rescinded. The case will be referred back to the previous instance in order to completely and correctly establish the relevant facts and to re-evaluate them. 

Observations/comments:

This case summary was written by Ann-Christin Bölter, an LLM student in Immigration Law at Queen Mary University, London.

The summary was proof read by Ana-Maria Bucataruan, LLM student in Immigration Law at Queen Mary University, London.