Publication
EMARK - JICRA - GICRA 
Publication
EMARK - JICRA - GICRA
Decision
2001 / 1, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: Reasonableness of forcible return of Roma to Kosovo
Due to current circumstances in Kosovo, the forcible return thereto of persons belonging to several groups who form the minority "Roma" community (including Ashkali and "Egyptians" or Maghjup) cannot be considered as reasonable.
Decision 2001 / 2, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: Unreasonableness of forcible return to Kosovo because of mixed ethnic origin
The return of a family of mixed Serb and Albanian origin, which is originally from Kosovo, either to Kosovo or to another part of Yugoslavia, is not reasonable.
Decision 2001 / 3, English Summary
[Original decision] [Definition of Terms]
Art. 1 C ciph. 5 para. 2 Geneva Convention: compelling reasons leading to the granting of refugee status despite the cessation of the danger of persecution; application of this article to the situation in Kosovo.
Kosovo still belongs to the Federal Republic of Yugoslavia according to public and international law. Therefore, asylum seekers from Kosovo who have fulfilled the requirements for refugee status at the time they left Kosovo are still entitled to asylum as long as they meet the criteria regarding compelling reasons (raisons impérieuses) as established in the case law, i.e., having left Kosovo before the entry of the KFOR forces into the country and having satisfied, at that time, the requirements for the granting of asylum.
Decision 2001 / 4, English Summary
[Original decision] [Definition of Terms]
Art. 52 para. 1 Asylum Law: third country clause; expulsion of a Tunisian to Morocco
In principle, the third country clause can be applied at any stage in the
proceedings. The examination of refugee status can be dispensed with if the
person being expelled can obtain the right to permanent and safe residence
in the third country.
Marriage with a Moroccan national is not sufficient to prove that the appellant can enter Morocco and obtain the right to permanent and safe residence there. Because of the regional treaties of the Maghreb countries, especially the conventions on extradition, Morocco apparently is not a safe third country for a Tunisian national who claims that he is subject to persecution because he is a member of the organisation Ennahda.
Decision 2001 / 5, English Summary
[Original decision] [Definition of Terms]
Art. 105 para. 1(c) Asylum Law and art. 1 para. 2 AAC Ordinance, art. 20 para. 1(b) (in combination with art. 14a and 14b) Law on Foreign Nationals:
The Federal Department of Justice and Police has jurisdiction to hear an appeal from the FOR concerning an ordinance on temporary admission according to art. 14b Law on Foreign Nationals. The jurisdiction of the AAC is also not established under art. 13 EHRC.
Decision 2001 / 6, English Summary
[Original decision] [Definition of Terms]
Art. 10 para. 1 (d) Law on Administrative Procedure, art. 23 (c) and 26 para. 3 Justice Administration Law, art. 26 AAC Ordinance:
A challenge for prejudice against the AAC as a whole, or against all the judges of the AAC, is inadmissible.
Factors leading to the assumption of the bias of a judge.
Decision 2001 / 7, English Summary[Original decision] [Definition of Terms]
Art. 18 Swiss Federal Constitution, art. 37 Law on Administrative Procedure, art. 16 para. 2 and art. 27 para. 3 Asylum Law: An asylum seeker does not have a legal right to be sent to a certain canton.
The right to freedom of language guaranteed by art. 18 of the Swiss Federal Constitution does not give an asylum seeker the right to have asylum proceedings conducted in an official language of his/her choice.
Decision 2001 / 8, English Summary
[Original decision] [Definition of Terms]
Art. 29 ss. Law on Administrative Procedure; art. 29 para. 2 Swiss Federal Constitution:
The FOR’s treatment of an application for access to files shortly before notifying an applicant of its decision without valid reason does not formally constitute a violation of the right to be heard.
Decision 2001 / 9, English Summary
[Original decision] [Definition of Terms]
Art. 50 Law on Administrative Procedure in combination with art. 12 para. 1 Asylum Law:
This decision specifies the point in time in which the applicant is notified of the FOR-decision in due form and therefore the period of time for filing an appeal starts to run.
Decision 2001 / 10, English Summary
[Original decision] [Definition of Terms]
Art. 33 Asylum Ordinance 1 specifies concrete criteria that lead to the assumption of a grave personal emergency situation and therewith to temporary admission according to art. 44 paras. 3 and 4 Asylum Law.
These criteria may not be applied systematically. With reference to the former version of the Asylum ordinance 1 (which has in the meantime been replaced by a broader wording), the enumeration of the specific criteria must to be viewed as exemplary, and neither as cumulative nor conclusive. The decisive factor is whether in an overall view of each individual case, sufficient elements of integration can be established.
Decision 2001 / 11, English Summary
[Original decision] [Definition of Terms]
Art. 65 para. 2 Law on Administrative Procedure: A request for pro bono legal services can also be made in the proceedings of the first instance before the FOR. But, the prerequisites are far more stringent than in the appeal procedure.
In the first instance, representation by an attorney is only necessary in a few exceptional cases due to the incontrovertible character of the procedure and the specific procedural guarantees. In the concrete case (complex evidentiary proceedings following a remand from an appeal to the FOR), this would be affirmed.
Decision 2001 / 12, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum Law; art. 50 Additional Protocol to the Geneva Conventions of 12. August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol 1): persecution during a civil war together with ethnic cleansing; definition of "civilian" and distinction from the notion of "combatant".
A "civilian" is any person who does not participate directly in
hostilities (non-combatant) as opposed to members of the armed forces or of
organised militias who openly carry arms to fight invading troops. In case
of doubt, a person shall be considered to be a civilian.
A person who seeks to escape an impending ethnic massacre, who is not part of any existing combat unit and who is incapable of resisting enemy troops in any way is to be considered as a "civilian" as defined by international law.
Decision 2001 / 13, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum Law, Art. 14a para. 4 Law on Foreign Nationals: domestic alternative to flight for Roma and Ashkali from Kosovo
Persons belonging to the Roma and Ashkali community have a domestic
alternative to flight in the Federal Republic of Yugoslavia (outside of
Kosovo) which excludes the granting of asylum.
Unreasonableness of forcible return of persons belonging
to the Roma and Ashkali community to the Federal Republic of Yugoslavia
(confirmation of the jurisprudence, cf. EMARK - JICRA - GICRA 2001
No.1 ).
Decision 2001 / 14, English Summary
[Original decision] [Definition of Terms]
Art. 22 and 23 para. 1(b) Asylum Law. proceedings at the airport and immediate expulsion at the airport
A previous stay in a third country, which is a prerequisite for an
immediate expulsion according to Art., 23 para. 1(b) Asylum Law, does not
require a certain duration or an official authorisation; a de facto stay on
the territory of the third country, which was known to its authorities, is
sufficient.
The possibility of returning to a third country as defined in Art. 23
para. 1(b) Asylum Law signifies more than merely having access to the border
control at an airport in this country or being able to stay in the transit
zone. In fact, what is required is the possibility of entering the territory
of the third country. In particular, the obligation of a third country to
accept a person originally rejected at the landing place for an identity
check, as stated in Annex 9 (3.49) to the Convention on International Civil
Aviation of December 7, 1944, does not qualify as return to such a third
country.
The immediate expulsion to Iran of an asylum seeker from Iraq is not
admissible due to the lack of a possibility to request protection in that
third country.
The lack of a statement in the FOR decision regarding the possibility of entry into a third country and of residence therein constitutes a violation of the right to be heard; in the present case, the violation of the right to be heard can be considered to be remedied within the framework of the appeal procedure.
Decision 2001 / 15, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum law: conditions for the granting of asylum because of sanctions for deserting or evading a military draft; application of the laws on amnesty in Bosnia-Herzegovina
It is only under certain circumstances that persons who have deserted or
evaded military service can obtain refugee status: in particular, refugee
status may be granted if they will receive an unreasonably severe punishment
for such an offence due to their race, religion, nationality, affiliation to
a certain social group or their political views.
The amnesty laws of the "Republika Srpska" and the Muslim/Croat Federation are applicable to all violations of the duty to participate in military service committed between 1. January 1991 and 22. December 1995. Offences of this kind, committed during this period, are not sufficient for a well-founded fear of persecution.
Decision 2001 / 16, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: Reasonableness of forcible return
Recapitulation of the criteria which have to be considered when examining the reasonableness of forcible return to Sri Lanka; situation of single Tamil women.
Decision 2001 / 17, English Summary
[Original decision] [Definition of Terms]
Art. 14b para. 2 Law on Foreign Nationals in combination with art. 10 para. 2 and 14a para. 6 Law on Foreign Nationals: Legal prerequisites for the revocation of a temporary admission
Case of a person with serious mental problems.
Decision 2001 / 18, English Summary
[Original decision] [Definition of Terms]
Art. 11 Asylum Law, art. 49 Civil Procedure Law in combination with art. 12 (c) and art. 19 Law on Administrative Procedure:
Information for evidentiary purposes concerning the legally relevant facts of a case may only be used if it has been procured in the form of a written enquiry and answer.
Decision 2001 / 19, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (c) Asylum Law:
A grave violation of the duty to co-operate with the authorities within the meaning of art. 32 para. 2 (c) Asylum Law only exists in cases where, through such action, a specific and concrete proceeding is hindered.
Decision 2001 / 20, English Summary
[Original decision] [Definition of Terms]
Art. 44 para. 3 Asylum Law: A decision that denies the examination of a claim of a serious personal emergency situation, pursuant to art. 44 para. 3 Asylum Law, is only binding where there has been a denial of asylum in a final decision ordering, in addition, both forcible return and the execution of the expulsion.
The proceedings are not terminated by a final decision if the execution of the expulsion order has been replaced by a temporary admission (substitutional measure for in-executable expulsion) or if an appeal for review of the appellate decision has been admitted and the appellate decision has been set aside because of its original defectiveness.
Decision 2001 / 21, English Summary
[Original decision] [Definition of Terms]
Art. 8 EHRC: art. 14 para. 1 and 44 para. 1 Asylum Law: right to be granted a residence permit during the asylum proceedings. Relationship between the asylum proceedings and the alien police permit proceedings (fremdenpolizeiliches Bewilligungsverfahren).
If a question arises as to whether an asylum seeker may apply for a
residence permit during the course of asylum proceedings, whether or not
such person can basically assert a right according to Art. 14 para. 1 Asylum
Law must be examined at the outset. In this matter, the rulings of the Swiss
Federal Supreme Court with regard to art. 8 EHRC and art. 100 para. 1 (b)
ciph. 3 Justice Administration Law are relevant.
According to the recent case law of the Swiss Federal Supreme Court, the
foreign partner of a homosexual couple can assert a claim based on Art. 8
EHRC under certain circumstances.
In case the right to a residence permit is to be (basically) asserted, the
concrete assessment of the validity of the claim and, therewith, the
decision as to the expulsion is within the competence of the alien police
authority (Fremdenpolizeibehörde).
The asylum authorities shall not adjudicate upon the expulsion of an
asylum seeker if he has applied for a residence permit and if the asylum
authority concludes, in a preliminary examination, that he is basically
entitled to the grant of a residence permit.
If the authority competent for legal proceedings concerning foreigners (im ausländerrechtlichen Verfahren zuständige Behörde) has dismissed the application for a residence permit, the asylum authorities do not have to take art. 8 EHRC into consideration when deciding upon the admissibility of the forcible return.
Decision 2001 / 22, English Summary
[Original decision] [Definition of Terms]
Art. 7 and 32 para. 2 (b) Asylum Law, art. 8 Civil Code: Burden of proof in case of alleged minority.
The radiographic examination of the bones of the hand constitutes sufficient evidence of fraudulent misrepresentation of age only in case of a divergence of over three years between the medically determined bone age and the alleged age of the applicant. If this evidence cannot be supplied, it does not necessarily mean that the applicant has to be considered as a minor. In the substantive proceedings, the burden of establishing the alleged legal minority is on the applicant. If his actual age cannot be determined with reasonable effort, he must bear the consequences of the lack of evidence in the context of the forcible return, i.e. he cannot invoke the rulings that apply to minors.
Decision 2001 / 23, English Summary
[Original decision] [Definition of Terms]
Art. 7 and 32 para. 2 (b) Asylum Law, art. 8 Civil Code: Burden of proof in case of alleged minority.
The radiographic examination of the bones of the hand constitutes sufficient evidence of fraudulent misrepresentation of age only in case of a divergence of over three years between the medically determined bone age and the alleged age of the applicant. If this evidence cannot be supplied, it does not necessarily mean that the applicant has to be considered as being minor. In the substantive proceedings, the burden of establishing the alleged minority is on the applicant. If his actual age cannot be determined with reasonable effort, he must bear the consequences of the lack of evidence in the context of the forcible return, i.e. he cannot invoke the rulings that apply to minors.
Decision 2001 / 24, English Summary
[Original decision] [Definition of Terms]
Art. 51 para. 2 Asylum law and art. 38 Asylum Ordinance 1; art. 8 EHRC: family asylum in favour of a near relative living abroad; particular circumstances and nature of the required support.
According to art. 51 para. 2 Asylum Law, "particular
circumstances" signify that the applicant must be in need of support by
a relative living in Switzerland as a refugee, and not by the Swiss
authorities or by third persons. This support requires a particular
commitment by the relative living in Switzerland, which encompasses more
than purely financial or moral support.
In the present case, the mother in favour of whom family asylum was
applied for primarily needs special medical treatment and not care by her
son within the re-established family community.
The dismissal of an application for family asylum does not exclude the possibility of applying to the competent alien police authority (Fremdenpolizeibehörde) for authorisation of entry into Switzerland in order to undertake residence as a family dependant.
Decision 2001 / 25, English Summary
[Original decision] [Definition of Terms]
Art. 44 para. 3 Asylum Law: For the assessment of a serious personal emergency situation, the years spent in Switzerland between adolescence and the beginning of adulthood is especially significant.
Decision 2001 / 26, English Summary
[Original decision] [Definition of Terms]
Art. 44 para. 3 Asylum Law: The existence of a serious personal emergency is affirmed based on the overall circumstances, even though the applicant is partially dependent upon social assistance.
Decision 2001 / 27, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (b) Asylum Law, art. 1 (a) Asylum Ordinance 1: The contention of a Yugoslav applicant coming from Kosovo that he comes from "South Serbia" does not constitute a fraudulent misrepresentation of nationality and therewith of identity.
The notion of identity is limited to the enumeration of characteristics set forth in art. 1 a Asylum Ordinance 1.
