Publication
EMARK - JICRA - GICRA
Decision
2002 / 1, English Summary
[Original decision] [Definition of Terms]
Legal basis of the "Humanitarian Action 2000" (residence
permits for persons who applied for asylum before 31 December 1992).
The AAC has jurisdiction to hear appeals from decisions of
the FOR concerning the "Humanitarian Action 2000".
In addition to the individual persons concerned, the canton where they reside also has the right to appeal from decisions by the FOR regarding the "Humanitarian Action 2000".
Decision 2002 / 2, English Summary
[Original decision] [Definition of Terms]
Art. 23 paras 1 and 2 Asylum Law: proceedings at the airport and immediate expulsion to a third country
The "removal order" form currently used by airport police for immediate expulsion of an asylum seeker to a third country in case of an application at the airport may no longer be employed; the order of expulsion contained in this document is not limited to a determined country of destination.
Decision 2002 / 3, English Summary
[Original decision] [Definition of Terms]
Art. 44 para. 3 Asylum Law, Art. 14a para. 4 Law on Foreign Nationals: grave personal emergency situation; combination with elements of unreasonableness
Updated assessment of the situation of the Ahmadi in Pakistan
and confirmation of precedents.
Temporary admission can be granted when application is based upon a grave personal emergency situation together with a combination of elements of unreasonableness of forcible return (confirmation of decision EMARK-JICRA-GICRA 2001 No. 10, p. 74).
Decision 2002 / 4, English Summary
[Original decision] [Definition of Terms]
Art. 44 paras 3 to 5; art. 33 Asylum Ordinance 1: grave personal emergency situation
Even if only one parent meets the temporal prerequisites for the consideration of a grave personal emergency situation, the situation of the family as a whole has to be taken into account. In exceptional cases, temporary admission according to art. 43 para. 3 Asylum Law may be granted based on an overall view involving the combination of elements of a grave personal emergency situation (integration in Switzerland) and of the unreasonableness of the forcible return (situation in the country of origin).
Decision 2002 / 5, English Summary
[Original decision] [Definition of Terms]
Art. 11 para 3 law on Administrative Procedure; Art. 18 and 51 Asylum Law: application for inclusion in refugee status is an application for asylum
The withdrawal of an appeal will not be observed if it was done with an absence of intent.
Where a person applies for inclusion in the refugee status of his or her spouse who has already been granted temporary admission, this shall be considered as an application for asylum as defined in art. 18 Asylum Law.
Decision 2002 / 6, English Summary
[Original decision] [Definition of Terms]
Art. 51 para. 2 Asylum Law, art. 38 Asylum Ordinance 1, art. 8 EHRC, International Pact on Civil and Political Rights: the international law regulations concerning Switzerland with regard to family asylum are not self-executing; basically the aliens police authorities have jurisdiction
If the prerequisites of Art. 51 paras 1 and 2 Asylum Law with regard to family asylum are not met, neither art. 8 EHRC nor the UN-Pact II on Civil and Political Rights can be applied. The assessment of the validity of a claim to residence by the near relatives of the applicant based upon these regulations lies within the competence of the alien police authorities.
Decision 2002 / 7, English Summary
[Original decision] [Definition of Terms]
Art. 8 EHRC, Art. 13 para. 1 Swiss Federal Constitution and art. 44 para. 1, 2nd sentence Asylum Law: meaning of the protection of family life and the principle of unity of family if the spouse is serving a prison sentence
The spouse of a rejected asylum seeker serving a prison
sentence in Switzerland cannot claim a right to residence based upon the principle of unity of the family as stated in art. 44 para. 1 Asylum Law.
The presence of a spouse in Switzerland who is serving a
prison sentence is not a consolidated right of residence according to the
rulings of the Swiss Federal Tribunal with regard to art. 8 para. 1 EHRC. The
forcible return of the other spouse and the children does not constitute a
violation of art. 8 EHRC and art. 13 para. 1 of the Swiss Federal Constitution.
The forcible return of the spouse and children of a prisoner is reasonable.
Decision 2002 / 8, English Summary
[Original decision] [Definition of Terms]
Art. 63 para. 1 (b) Asylum Law; art 1 C ciph. 1 and 5 para. 1 Geneva Convention: Revocation of asylum granted to refugees from Kosovo
Decision 2002 / 9, English Summary
[Original decision] [Definition of Terms]
Art. 53 Asylum Law: exclusion from asylum because of activities for the PKK
An asylum seeker can be declared undeserving of asylum
according to art. 53 of the Asylum law not only for non-political offences but
also for political offences.
Membership in the PKK does not, in itself, constitute a reprehensible act in the sense of art 53 Asylum Law. The individual contribution to the offence is assessed according to the gravity of the offence and the participation in the decision to act. Further, possible grounds for justification or for reduced criminal responsibility must also be taken into consideration.
Decision 2002 / 10, English Summary
[Original decision] [Definition of Terms]
European Agreement on Transfer of Responsibility for Refugees of 16 October 1980, Art. 50 Asylum Law, Art. 36 Asylum Ordinance 1: second granting of asylum, notion of authorised residence
The European Agreement on Transfer of Responsibility for Refugees of 16 October 1980 requires the Swiss authorities to grant refugee status and therefore asylum to a person who has legally resided in Switzerland for two years after having been granted refugee status by another state. Even in cases where the Agreement does not apply (i.e. applications for secondary asylum of refugees if the country which first granted them asylum is not a contracting state to the Agreement), the decision has to be made according to the spirit and the purpose of the Agreement.
Decision 2002 / 11, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: reasonableness of forcible return
The forcible return to Sierra Leone is, in principle, reasonable.
Decision 2002 / 12, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: unreasonableness of forcible return because of severe mental illness
Outside the large cities in the Bosniak/Croat Federation of Bosnia and Herzegovina facilities for psychiatric treatment are very limited. If a person in urgent need of intensive and long-term treatment because of a very severe mental illness does not have the possibility to legally and permanently reside close to an urban centre, forcible return of that person to Bosnia and Herzegovina is not reasonable.
Decision 2002 / 13, English Summary
[Original decision] [Definition of Terms]
Art. 66 para. 2 Law on Administrative Procedure: admissible pleas and subject of an appeal for review of the appellate decision; art. 40 Civil Procedure Law in combination with art. 19 Law on Administrative Procedure: evidentiary value and assessment of a medical certificate.
Decision 2002 / 14, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (b) Asylum Law. Art. 1 (a) Asylum Ordinance 1: fraudulent misrepresentation of identity; possibility to verify the alleged mixed ethnic origin; legal difficulties with the notion of ethnic group
A decision of non-entry can only be based upon a linguistic analysis on the origin of the asylum seeker ("LINGUA") if the analysis contains sufficiently substantiated information on verifiable characteristics of the identity of the person in question. In the present case, the analysis carried out does not rule out the possibility that the applicant might be of an ethnically mixed Albanian/Ashkali origin.
Decision 2002 / 15, English Summary
[Original decision] [Definition of Terms]
Art. 32 – 34. 37 and 45 para. 2 Asylum Law: Consequences of exceeding the time limit to make a decision of inadmissibility of the application for asylum
If the prerequisites defined in Art. 32 - 34 Asylum Law for a decision of inadmissibility are met, the FOR may pronounce an application for asylum inadmissible even though the time limit of 20 working days as from the date of the application, which is stated in Art. 37 Asylum Law, has been significantly exceeded. However, in such a case, the immediate expulsion according to art. 45 para. 2 Asylum Law may constitute a violation of the principle of proportionality. If there is a violation of the principle of proportionality, the immediate expulsion is suspended; further, the filing of an appeal will suspend the effect of a FOR decision.
Decision 2002 / 16, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum Law, Art. 1 A Geneva Convention: relevance in asylum matters of assaults by Islamist extremists in northern Iraq
The Islamic Movement of Iraqi Kurdistan (IMIK) has lost
control of the area of Halabja to the PUK (Patriotic Union of Kurdistan). It
does not have state-like authority in that area; therefore, the assaults for
which IMIK is responsible cannot be considered as quasi-state persecution
(update of precedent EMARK –JICRA-GICRA 2000 n 15).
The PUK is taking measures against the assaults by the IMIK. Therefore, these acts of persecution cannot be attributed to the PUK as indirect persecution.
Decision 2002 / 17, English Summary
[Original decision] [Definition of Terms]
Art. 46 para. 2 and Art. 105 Asylum Law: Appellate instance and right to appeal in case of dismissal of the petition of a canton for temporary admission of an asylum seeker
The AAC is competent to decide on an appeal from a decision of the FOR dismissing a petition by a canton, based upon Art. 46 para. 2 Asylum Law, to grant temporary admission to a rejected asylum seeker because of the impossibility of forcible return.
The forcible return is to be considered as impossible if the person in question has complied with all the measures taken by the canton to execute the expulsion order and it is foreseeable that the forcible return cannot be carried out within a year.
Decision 2002 / 18, English Summary
[Original decision] [Definition of Terms]
Art. 12 and 19 Law on Administrative Procedure, Art. 40 and 57 Civil Procedure Law: evidential value and assessment of a private medical certificate
A medical certificate can only be denied evidential value if there are concrete indications that the credibility of the certificate is doubtful/questionable.
Decision 2002 / 19, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum Law, Art. 1 A ciph. 2 Geneva Convention: Relevance of the impending punishment for desertion
Military service cannot be considered as a legitimate civic duty if a person was forcibly recruited in a country where military service is not compulsory. Even if military service is compulsory, it cannot be regarded as a legitimate civic duty if it involves participation in acts banned by international law and proscribed by the international community. In such situations, the threat of punishment due to desertion may be relevant for the granting of asylum.
Decision 2002 / 20, English Summary
[Original decision] [Definition of Terms]
Art. 51 para. 1 Asylum Law: exceptional circumstances opposed to family asylum; principle of good faith
The spouse of a refugee and their under-age children are
considered as refugees and are granted asylum unless special circumstances are
opposed thereto. The fact that a refugee and his spouse live permanently separated constitutes such a special circumstance.
The prerequisites for the granting of family asylum must be met as of the date of the asylum decision.
Decision 2002 / 21, English Summary
[Original decision] [Definition of Terms]
Art. 63 para. 1 (b) Asylum Law in combination with art. 1 C ciph. 1 Geneva Convention: Revocation of asylum granted to refugees from Kosovo
In accordance with the leading decision of the AAC concerning the special situation in Kosovo (EMARK-JICRA-GICRA 2002 no. 8), the one time return of a refugee to Kosovo in order to visit relatives may not be considered as sufficient to undoubtedly indicate lack of fear of persecution and therefore a reason for revocation of asylum.
Decision 2002 / 22, English Summary
[Original decision] [Definition of Terms]
Art. 14b para. 2 Law on Foreign Nationals in combination with art. 14a paras 3 and 4 Law on Foreign Nationals: revocation of temporary admission of Slav Muslims from Kosovo; lawfulness and reasonableness of forcible return.
In general, the forcible return of Slav Muslims (Bosniacs) from Kosovo who resided in the districts Dragash, Prizren, Gjakove or Pej before leaving their country is considered lawful and reasonable.
Decision 2002 / 23, English Summary
[Original decision] [Definition of Terms]
Convention Relating to the Status of Stateless People, art. 14a Law on Foreign Nationals: Situation of Kurds in Syria; question of statelessness; reasonableness and possibility of forcible return.
The legal status of stateless Kurds in Syria as such does not
make the forcible return seem unreasonable.
Neither a right of entry into a country nor permission of residence thereto can be derived from the Convention Relating to the Status of Stateless People.