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Switzerland

02 December 2020 – Switzerland

2 December 2020
24 Heures, “Asile: Pas de Détention si le Renvoi est Empêché par le Coronavirus,” 8 October 2020, https://www.24heures.ch/asile-pas-de-detention-si-le-renvoi-est-empeche-par-le-coronavirus-783597632491
24 Heures, “Asile: Pas de Détention si le Renvoi est Empêché par le Coronavirus,” 8 October 2020, https://www.24heures.ch/asile-pas-de-detention-si-le-renvoi-est-empeche-par-le-coronavirus-783597632491

In a recent finding, the Committee on the Rights of the Child (CRC) concluded that Switzerland violated provisions in the UN Convention on the Rights of the Child when it failed to show due diligence in assessing a child’s best interests and did not take the child’s views into account in a case involving a removal procedure for a family from Azerbaijan. The ruling comes as Swiss authorities are facing increasing legal challenges regarding its detention decisions stemming from the COVID-19 pandemic. It also comes just a year and a half after Switzerland introduced a controversial new asylum system enabling the country to rapidly process applications.

The CRC case concerned a family of four that had made its way to Switzerland after fleeing their home in Azerbaijan. After a seven-month wait for an asylum hearing in Switzerland, the family reluctantly agreed to withdraw its asylum claim and be voluntarily repatriated. The complainant’s husband was told by his father that it was safe for him to return to Azerbaijan and that he no longer risked incarceration. Upon their return to Azerbaijan, the husband was arrested and the mother arranged to flee to Switzerland again. In May 2018, the mother and her two children, E.A. and U.A., arrived in Ticino and filed a new asylum application. As a result of the persecution and trauma she suffered, the mother’s mental health had worsened. In a report drafted by a psychologist from the Baobab centre, which provided support to the family, it was noted that the mother had developed symptoms of anxiety and depression, insomnia and somatic reactions and that the social network established by the mother and her children during their first stay in Ticino “allowed them to maintain a minimum level of mental and physical well-being.”

However, the asylum request was unsuccessful and Swiss authorities submitted a request to Italy to take charge of the mother and her children, as they had entered the European Union through Italy on an Italian visa. Italian authorities agreed to take charge of the family and so Swiss authorities ordered the removal of the mother with her children. The mother filed an appeal against this decision in July 2018, but the Swiss Federal Administrative Court rejected her appeal. The court ruled that there were no concrete and substantiated indications that the persons concerned would be unable to travel or that the alleged health problems were so serious that the family’s transfer to Italy would be contrary to the requirements of the European Court of Human Rights.

Despite being aware that the children had contracted chickenpox and the risk of contagion had been reported by a doctor, on 12 September 2018, the police picked up the mother and her children from their hotel to carry out their removal from Zurich airport. Officers showed the children an image of forced removal (people being restrained), telling them that if their mother did not cooperate, they would remove them in the same way. The mother suffered panic and anxiety attacks during the removal, which reportedly prompted the police to leave the family at Zurich airport without any money and instruct them to make their own way back to their accommodation in Ticino. The mother thus complained that the Swiss authorities violated their obligation to respect the rights set out under Articles 3 (due diligence in assessing the children’s best interests) and 12 (right of the child to be heard in any judicial or administrative proceedings affecting the child) CRC.

The CRC pointed out that Article 12 does not impose an age limit on the right of the child to express his/her views. In absence of a direct hearing for the children, the situation amounted to a violation of Article 12. Also, the committee credited the argument that Swiss authorities did not take into account the trauma experienced by the children and in consequence, it considered that the national authorities failed to hear E.A. and U.A. and did not show due diligence in assessing the children’s best interests, constituting a violation of Article 3.

The CRC finding is the latest in a string of recent legal challenges involving detention and removal proceedings that have confronted Swiss authorities, mainly stemming from the impact of COVID-19. The group Asylex, which campaigns for the rights of people in administrative detention in Switzerland, has helped spearhead these challenges. As previously reported (see 27 June Switzerland update on this platform), on 9 June, the Swiss Supreme Court handed down a judgment in a case brought by Asylex, stating that due to limitations on the ability to deport people, brought by the COVID-19 pandemic, “detention pending removal” was unlawful during this period. According to Asylex, it has pursued similar argumentation in more than 40 cases between March-June and as of 11 June, more than 30 people had been released. After two successful challenges against the Zurich Migration Office at the Federal Supreme Court in June, Asylex president, Lea Hungerbühler said: “The fact that the Federal Supreme Court has now ruled this way in the two precedent cases is a strong indication that the Zurich Migration Office must change its practice.”

Following the establishment of Switzerland’s new asylum system in March 2019, the Coalition of Independent Asylum Lawyers (Coalition des juristes indépendant-e-s pour le droit d’asile) released a critical assessment of the first year of operation of the new accelerated procedure. As part of the coalition, Asylex argued that the procedure is too quick and superficial, and that there have been numerous problems associated with quality of translations during asylum hearings, complaints of racism, and the placement of asylum seekers in isolation in federal asylum centres.