Publication
EMARK - JICRA - GICRA 
Publication
EMARK - JICRA - GICRA
Decision 1999
/ 1, English Summary
[Original decision] [Definition of Terms]
In the event of a subsequent marriage in Switzerland of two foreigners who had made separate requests for asylum, the determination of whether refugee status is to be granted to one of the spouses may not be made independently of the determination concerning refugee status of the other spouse.
If the FOR has suspended consideration of one of the spouse’s request for asylum for an unspecified period of time, in particular so as to conform to the directive given by the Federal Department of Justice and Police in respect of older procedures concerning Sri Lankan nationals, when the other spouse has appealed a decision refusing asylum to the Commission, then the decision challenged shall be quashed and the case remanded back to the FOR, or in other words, set back into the same procedural status as the suspended case of the spouse.
Decision 1999 / 2, English Summary
[Original decision] [Definition of Terms]
The obligation to designate, for each minor requesting asylum, a person capable of providing legal assistance to such minor during the procedure follows from the right to be heard; this principle, however, does not necessarily require such person’s presence at hearings. Failure to invite such person to the hearings might constitute a violation of the right to be heard.
The enforcement of the expulsion order of a minor presupposes that a determination has previously been made during the preliminary investigation as to the extent to which a member of the minor’s family or a specialized institution could, after the minor’s return, assume responsibility for such minor. The presence of the minor’s guardian could be indispensable during the hearing.
Decision 1999 / 3, English Summary
[Original decision] [Definition of Terms]
The Leading Decision
(cf. EMARK - JICRA - GICRA
1998 no. 13, p.84 ss. ) according to
which an unaccompanied minor must be represented by a guardian ad litem prior to
the first hearing concerning the justification for asylum is applicable to all
pending procedures. The failure to respect this principle, as a general rule,
results in the decision of the first instance being overturned for violation of
the right to be heard. In the event that the decision of the FOR has been
reached before the office was aware of the change of practice (i.e. the end of
October 1998 at the latest), this procedural error can exceptionally be cured if
the failure to have appointed a guardian ad litem for the minor was of no
prejudice to the appellant.
Decision 1999 / 4, English Summary
[Original decision] [Definition of Terms]
The ground of revision contained in Art. 66 para. 2 (b) Law on Administrative Procedure may also be found to be present in cases where the judge incorrectly understood certain documents in the file, or more particularly, a fact established therein.
Decision 1999 / 5, English Summary
[Original decision] [Definition of Terms]
The practice according to which a judge can deviate from an expert’s conclusions because of major reasons applies only to medical evaluation prepared by a court-appointed medical expert. As a result, a private expert opinion is to be accorded less weight as conclusive proof. However, in view of the principle of free assessment of proof, a private expert opinion (assuming that the expert has adequate professional competence) may be accorded the same weight as a report prepared by a court-appointed medical expert to the extent that such report appears complete and reliable.
Decision 1999 / 6, English Summary
[Original decision] [Definition of Terms]
Lack of conclusiveness of a medical certificate which was vague and perfunctory, prepared at the request of the petitioner to evidence psychological disorders.
Decision 1999 / 7, English Summary
[Original decision] [Definition of Terms]
For Bosnians, chased from a region conquered by Serbs, a stay of more than two years (from 1992 to 1994) in a Muslim zone sheltered from ethnic purification measures broke the temporal chain of causation between a possible quasi-state persecution suffered prior to such stay and their departure from the country.
Decision 1999 / 8, English Summary
[Original decision] [Definition of Terms]
Analysis of the situation in Bosnia-Herzegovina; criteria for evaluation of the extent to which enforcement of expulsion order can be considered as reasonable.
Decision 1999 / 9, English Summary
[Original decision] [Definition of Terms]
Situation in the southern provinces of Turkey: overview of the previous
practice, which is largely confirmed (compare EMARK
- JICRA - GICRA 1998 n°2, p. 16ff ).
Reconsideration in regard to the security situation of the reasonable
enforcement of expulsion to the provinces of Adana, Hatay, Malatya and Osmanye
and the non reasonable enforcement of expulsion to the province of Tokat.
Decision 1999 / 10, English Summary
[Original decision] [Definition of Terms]
Refugees admitted provisionally in Switzerland cannot claim a right to reunite with their families based on the law on asylum. In this respect, treating refugees with temporary admission differently than those who have been granted asylum does not violate the Convention relating to the status of refugees. The conditions under which refugees admitted provisionally can enforce a claim for family reunification and the extent to which the dispositions applicable to immigration matters (art. 7 of the ordinance concerning the provisional admission of foreigners) is compatible with a superior law must be examined in proceedings of the immigration authorities.
Decision 1999 / 11, English Summary
[Original decision] [Definition of Terms]
The exclusion clause as defined in art. 1 F (c) of the Convention presupposes a personal (co-)liability for a specific governmental policy which is directly related to clear violations of the fundamental principles of the United Nations.
Decision 1999 / 12, English Summary
[Original decision] [Definition of Terms]
The conditions for the application of art. 1 F(a) Geneva Convention impose a lesser standard of proof than the "high probability" required by art. 12a Asylum Law. There must, nonetheless, exist at least serious reasons from which arises a substantial suspicion allowing consideration of exclusion; simple presumptions are not sufficient. In this particular case, applying that standard of proof, war crimes of the sort foreseen by the Convention could not be imputed to the appellant.
Decision 1999 / 13, English Summary
[Original decision] [Definition of Terms]
The implementation of an expulsion order to Liberia may, in principle, reasonably be required.
Decision 1999 / 14, English Summary
[Original decision] [Definition of Terms]
The implementation of an expulsion order to Liberia may, in principle, reasonably be required.
Decision 1999 / 15, English Summary
[Original decision] [Definition of Terms]
In the context of the so called "airport procedure" under art.
13d, para. 4 Asylum Law (new art. 23 para. 3), the agreement of the HCR concerning
immediate implementation of expulsion is a preliminary condition to the
decision on immediate return to the country of origin. This agreement is also
necessary when it is unlikely that the applicant has the nationality that he
claims to have (clarification of jurisprudence, cf. EMARK - JICRA - GICRA
1997 n° 19, p. 163 ).
Decision 1999 / 16, English Summary
[Original decision] [Definition of Terms]
A low standard of proof is sufficient to determine the existence of signs of persecution which would make the request for asylum admissible.
Decision 1999 / 17, English Summary
[Original decision] [Definition of Terms]
In order to examine the existence of signs of persecution (which make the request for asylum admissible) the notion of persecution has to be interpreted broadly: it includes not only the serious prejudice referred to in art. 3 Asylum Law but also the obstacles to forcible return as provided in art. 18, para. 1 [new: art. 44, para. 2] Asylum Law and 14a, para. 2 to 4 Law on Foreign Nationals, and, in particular, inhuman treatment as provided in art. 3 EHCR and 3 Conv. on Torture.
Decision 1999 / 18, English Summary
[Original decision] [Definition of Terms]
The obligation to appoint a guardian ad litem for an unaccompanied minor
also applies to a hearing to establish a linguistic analysis on the origin (clarification
of jurisprudence; cf. EMARK - JICRA - GICRA
1998 n° 13, p. 88ss ).
Decision 1999 / 19, English Summary
[Original decision] [Definition of Terms]
By virtue of the UMA, less reliable forms of evidence than an analysis of
fingerprints are admissible to establish fraudulent misrepresentation
concerning identity, in particular by linguistic analysis on the origin done
by the FOR. The former strict practice of the AAC according to
which fingerprint analysis was practically the only acceptable form of
evidence (compare EMARK - JICRA - GICRA 1996 N°
15 ) has therefore been rendered invalid.
Decision 1999 / 20, English Summary
[Original decision] [Definition of Terms]
The practice, according to which the FOR must provide the applicant for
asylum with complete information concerning the origin, training and
qualifications of the Lingua specialist (cf. EMARK - JICRA - GICRA
1998 n° 34 ) is hereby
confirmed. If this information has not been provided by the FOR – at the
latest in the appeal procedure at the stage of responding the appeal – then,
the judgment appealed must be overturned for violation of the right to be
heard.
Decision 1999 / 21, English Summary
[Original decision] [Definition of Terms]
Immediate return to a safe third country due to close relationship with persons living in such country presupposes that those persons have the right to remain in that country for more than a brief stay; for this purpose, the mere status of asylum seeker is insufficient.
Decision 1999 / 22, English Summary
[Original decision] [Definition of Terms]
).Confirmation of the practice according to which immediate return on the
basis of previous stay in a safe third state may normally be required only if
that stay lasted at least 20 days. This rule may however be varied, upwards or
downwards in cases where there are sufficient reasons for doing so. (compare
also EMARK - JICRA - GICRA 1999 n° 23 )
Decision 1999 / 23, English Summary
[Original decision] [Definition of Terms]
).The guarantee offered by a State which is party to an agreement for readmission to take an applicant for asylum back onto its territory means only that an expulsion is possible within the meaning of art. 19, para. 2 Asylum Law, in accordance with art. 14a, para. 2 Law on Foreign Nationals. This guarantee does not relieve the asylum authorities from their obligation to examine whether the other conditions of art. 19, para. 2, Asylum Law i.e. that the forcible return is lawful and may be required, have been fulfilled.
Decision 1999 / 24, English Summary
[Original decision] [Definition of Terms]
Where one of the parents of a minor or a person responsible for his or her education is in Switzerland, the FOR has no obligation to appoint a guardian ad litem.
Decision 1999
/ 25, English Summary
[Original decision] [Definition of Terms]
Waiver of the right of asylum is an inherently personal right which, like
the submission of an application for asylum, may be exercised by a minor who
has the capacity of discernment, without the cooperation of his or her legal
representatives. As a relative inherently personal right (compare also EMARK
- JICRA - GICRA 1998 N° 29 ), it may also be exercised through the legal representative for a
child without the capacity of discernment so that the holder of the parental
responsibility may in principle waive asylum on his or her behalf. This is not,
however, permissible where there is a conflict of interest between the parents
and the minor child as in the present case with regard to the family situation
after divorce of the parents. In that event, a guardianship must be
established in accordance with art. 392, ciph. 2 CC.
Decision 1999
/ 26, English Summary
[Original decision] [Definition of Terms]
The ground for revision contained in Art. 66. para. 2 (b) Law on Administrative Procedure (overlooking a fact) may also be present where a relevant fact was not considered in the appeal procedure on the ground that the previous instance had omitted to transmit an essential document to the appeal commission.
Decision 1999
/ 27, English Summary
[Original decision] [Definition of Terms]
The forcible return to Nigeria may generally be considered as reasonable.
Decision 1999 / 28, English Summary
[Original decision] [Definition of Terms]
The forcible return to Sierra Leone may generally be considered as reasonable.
Decision 1999 / 29, English Summary
[Original decision] [Definition of Terms]
For an Iraqi, the filing of an application for asylum in a foreign country may result in the applicant being considered an opponent of the regime and, as a result, being persecuted. Nonetheless, this circumstance is not sufficient, in and of itself, to require that refugee status be granted. If, however, a person leaves the country illegally and it must be assumed that Iraqi authorities are informed of the filing of an application for asylum, refugee status should be granted for subjective post-flight subjective reasons for persecution.
© 27.06.02