Publication
EMARK - JICRA - GICRA
Publication
EMARK - JICRA - GICRA
Decision
2005 / 1, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (a) Asylum Law: inadmissibility of an application for asylum; nationality of exiled Tibetans living in Nepal or India
Exiled Tibetan asylum seekers are generally not of unknown nationality; in most cases they are considered nationals of the People’s Republic of China, even after a possible prolonged stay in India or Nepal. Indications for persecution in the sense of Art. 32 para. 2 (a) Asylum Law have to be examined with regard to the country of origin of the asylum seeker. In the case of exiled Tibetan asylum seekers, this would be the People’s Republic of China.
Decision 2005 / 2, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (e) Asylum Law: inadmissibility of a second application for asylum; indications that an asylum seeker might meet the requirements of refugee status; domestic alternative to flight
1. In determining whether indications of persecution meeting the requirements of refugee status that occurred after initial asylum proceedings, and therefore according to Art. 32 para. 2 (e) Asylum Law would justify admitting a second application for asylum, a low standard of proof is to be applied.
2. In order to determine whether a person applying for asylum a second time has a domestic alternative to flight, the asylum application must be examined on its merits (cf. EMARK-JICRA-GICRA 2004 no. 5).
3. In the present case the applicants, members of the Ashkaelia community who fled the riots in March 2004, do not have an obvious domestic alternative to flight (specification of decision EMARK-JICRA-GICRA 2001 no. 13).
Decision 2005 / 3, English Summary
[Original decision] [Definition of Terms]
1. The AAC is competent to decide on an appeal against a decision by the FOR in which a temporary admission is declared extinct.
2. The circumstances under which cantonal authorities have the right to lodge an appeal against a decision by the FOR with the AAC are explained.
3. Foreigners protected by Art. 8 para. 1 EHRC have a right to be granted a residence permit by the aliens’ police authority. The temporary admission as a substitute measure for an impracticable forcible return does not qualify as a residence permit.
4. The expulsion ordered in the asylum proceedings remains in force until a residence permit has been granted by the aliens police authority (confirmation of precedents EMARK-JICRA-GICRA 2000 no. 30 and 2001 no. 21). The revocation of temporary admission based on Art. 14b para 2 Law on Foreign Nationals is not justified if the applicant, although entitled to a residence permit, has not yet been granted one.
Decision 2005 / 4, English Summary
[Original decision] [Definition of Terms]
Art. 44 paras. 2 - 4 Asylum Law, Art. 14a paras. 3 - 4bis Law on Foreign Nationals, Art. 25 para. 3 Federal Constitution, Art. 3 EHRC; lawfulness and reasonability of forcible return to Macedonia; examination of a serious personal emergency situation
1. In principle, forcible return to Macedonia is lawful and reasonable. Furthermore, in the present case involving an ethnic Albanian who claims being currently exposed to danger because of previous pro-Albanian activities, there are no individual obstacles to expulsion.
2. If an asylum seeker has not made reasonable efforts to become integrated into the Swiss society, the fact that he has been living in this country for ten years does not as such constitute a serious personal emergency situation even if the person in question is of advanced age.
Decision 2005 / 5, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (d) Asylum Law: inadmissibility of an application for asylum if a third country has jurisdiction concerning asylum and forcible return proceedings
Based on Art. 32 para. 2 (d) Asylum Law an asylum application may not be admitted if another country is determined as country of first asylum by a treaty. Neither readmission treaties nor the obligation of states pursuant to the EHRC or the Geneva Convention fall under this category of treaties.
Decision 2005 / 6, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4, Law on Foreign Nationals, Art. 3 para. 1, Convention on the Rights of the Child; reasonableness of forcible return; consideration of the best interests of the child; reciprocal effect of integration in the sense of Art. 44 para. 3 Asylum Law in combination with Art. 14a para. 4bis Law on Foreign Nationals
When examining the reasonableness of forcible return, the best interests of children involved have to be considered. If the integration or reintegration of a child in its country of origin is complicated by its advanced assimilation in Switzerland, forcible return may be considered unreasonable for the whole family.
Decision 2005 / 7, English Summary
[Original decision] [Definition of Terms]
1. The fact that an asylum seeker has engaged in significant political activities soon after entering Switzerland and namely has represented his organisation (in the present case: Yekiti Party) towards official authorities, can be regarded as an indication for the credibility of the alleged political activities of the asylum seeker in his country of origin.
2. Even after the Kurd riots in March 2004 no systematic persecution of Yekiti Party members based on their membership in that party alone can be asserted. However active party members risk being arrested and imprisoned for a prolonged period of time.
Decision 2005 / 8, English Summary
[Original decision] [Definition of Terms]
1. Asylum seekers have to present prima facie evidence for their nationality as an element of the notion of identity (application of leading decision 2004 no. 30).
2. If the alleged persecution is of such low intensity that it does not even meet the standard of persecution in a broad sense the question whether it is implausible on first sight can be left undecided.
Decision 2005 / 9, English Summary
[Original decision] [Definition of Terms]
1. First, this decision examines the situation of the ethnic minorities in Kosovo.
2. Due to the current situation in Kosovo, forcible return of persons belonging to the Albanian speaking minority groups of Roma, Ashkali and Egyptians is, generally, not reasonable. Forcible return can, upon exception, be considered as reasonable if members of the previously mentioned minority groups have especially close ties to the Albanian population or if they have family structures that are able to provide support.
3. Ethnic minorities in Kosovo are subject to severe discriminatory practices by the Albanian majority population and must rely mainly upon their own social and family structures for safety. Therefore, socio-economic as well as security aspects have to be considered when examining the capacity of the family of an asylum seeker to provide support.
Decision 2005 / 10, English Summary
[Original decision] [Definition of Terms]
The time limit for filing an appeal against a decision by the FOM declaring an asylum application inadmissible may be reinstated, if the appellant was not able to observe the time limit for an accumulation of reasonable grounds that are not due to his (her) fault. In the present case, these comprise the following: a short time-limit, a decision requiring translation, difficulty in finding a translator.
Decision 2005 / 11, English Summary
[Original decision] [Definition of Terms]
The possession by Turkish police forces of a political file on an asylum seeker will, generally, suffice to constitute a justified fear of future persecution in the sense of Art. 3 Asylum Law.
Decision 2005 / 12, English Summary
[Original decision] [Definition of Terms]
1. First, the present decision analyses the status of Eritreans and Ethiopians concerning Eritrean and Ethiopian citizenship.
2. The deportations of Eritreans from Ethiopia between 1998 and 2002 may, in principle, create a justified fear of persecution in the sense of Art. 3 Asylum Law. In the present case, the applicants are denied refugee status due to their dual citizenship.
3. Forcible return to Eritrea is only reasonable on the condition that favourable individual circumstances (capacity of family to give economic support or other factors allowing economic integration) exist, which ensure that the person in question will not be impoverished to such an extent that his (her) existence might be threatened.
Decision 2005 / 13, English Summary
[Original decision] [Definition of Terms]
In this decision, the AAC updates its analysis of the situation in Algeria. Forcible return to the whole of the Algerian territory is, generally, reasonable.
Decision 2005 / 14, English Summary
[Original decision] [Definition of Terms]
1. At the outset of this decision, the situation in southern Sudan after the Sudanese government and the Sudan People's Liberation Movement (SPLM) signed a peace agreement is analysed.
2. Thereafter, it is determined that supporters of the SPLM are, generally, no longer persecuted as political opponents.
3. The applicant in this case is an SPLM-member who engaged in activities (of a limited nature) while in exile, which were in favour of this party and the concerns of the Nuba people. Based on the reasoning provided above, the applicant cannot claim post-flight reasons for persecution.
Decision 2005 / 15, English Summary
[Original decision] [Definition of Terms]
Art. 32 para. 2 (f) Asylum Law does not apply to requests for asylum which were filed before this provision came into effect, i.e., before 1 April 2004.
Decision 2005 / 16, English Summary
[Original decision] [Definition of Terms]
1. First, this decision specifies the prerequisites that must be complied with for notification by a medical specialist concerning the determination of age of an asylum seeker by radiographic examination of the bones. These prerequisites are necessary to meet the standard of proof required by Art. 32 para. 2 (b) Asylum Law.
2. If an asylum seeker alleges he or she is under-age, the credibility of this statement has to be examined before the detailed hearing concerning the reasons for seeking asylum in order to determine if a guardian ad litem has to be assigned.
Decision 2005 / 17, English Summary
[Original decision] [Definition of Terms]
1. First, the present decision describes the situation of Chechen asylum seekers in Chechnya and in the Russian Federation.
2. Chechen asylum seekers are not being collectively persecuted in the area of the Russian Federation.
3. Forcible return to Chechnya is not reasonable.
4. Under certain circumstances a reasonable alternative to flight within the area of the Russian Federation may be assumed for rejected Chechen asylum seekers. However, when individually assessing the reasonability of such a flight alternative, a high standard must be applied.
Decision 2005 / 18, English Summary
[Original decision] [Definition of Terms]
1. Despite the change of the political and military situation in Afghanistan, high-ranking representatives of the former communist regime (in the present case a superior officer) may still have a justified fear of persecution in the sense of the Geneva Convention.
2. The applicant is excluded from refugee status according to Art. 1F (a) Geneva Convention because he presumably participated in war-crimes and crimes against humanity. This exclusion does not extend to his next of kin.
Decision 2005 / 19, English Summary
[Original decision] [Definition of Terms]
1. An application for asylum from abroad cannot be denied solely because of the absence of close ties with Switzerland. Factors that also have to be considered include the practicability and reasonability of demanding protection in another country. If there are indications of persecution of the applicant in his home country and he does not have a genuine opportunity of finding protection elsewhere, permission to enter Switzerland has to be granted (cf. EMARK-JICRA-GICRA 2004 Nos. 20 and 21 and 1997 No 15).
2. In the present case the other countries involved (Japan and United Kingdom) do not guarantee a genuine opportunity to apply for protection: Japan, where the applicant is currently residing, does not sufficiently ensure asylum proceedings that meet international standards and British law neither provides a possibility of applying for asylum from abroad nor of entering into the United Kingdom during pending asylum proceedings in another country.
Decision 2005 / 20, English Summary
[Original decision] [Definition of Terms]
1. An application for asylum may not be declared inadmissible based on a lack of indications for persecution if the FOR made further investigations in the sense of Art. 41 Asylum Law, namely if an additional hearing was held.
2. This principle applies without exception in cases where the further investigations were aimed at clarifying the plausibility of indications for persecution.
Decision 2005 / 21, English Summary
[Original decision] [Definition of Terms]
1. First, in this decision the current political situation in Turkey is analysed.
2. Despite the latest legal reforms with a view to joining the EU, reprisals against family members of assumed activists of PKK (or its successor organisations) or other Kurdish groups qualified as separatist by the authorities cannot currently be ruled out (confirmation of precedents; cf. EMARK-JICRA-GICRA 1994 Nos. 5 and 17 and 1993 No. 6).
Decision 2005 / 22, English Summary
[Original decision] [Definition of Terms]
If an asylum seeker is assigned to a canton with several official languages, the language of the proceedings, which according to Art. 16 para. 2 Asylum Law has to be applied by the FOR, is the official language of the place of residence of the person in question as determined by the cantonal rules.
Decision 2005 / 23, English Summary
[Original decision] [Definition of Terms]
Under certain very special circumstances forcible return of a rejected asylum seeker with (somatic, psychological or self-endangering) health problems may constitute a violation of Art. 3 EHRC (summary of the precedents of the European Court of Human Rights).
Decision 2005 / 24, English Summary
[Original decision] [Definition of Terms]
This decision renders an analysis of the general situation in Macedonia. Forcible return to Macedonia is assessed as generally reasonable; however, exceptions exist for very specific cases.
Decision 2005 / 25, English Summary
[Original decision] [Definition of Terms]
1. If the FOR declares an unsubstantiated request for review inadmissible, an appeal against this decision with the AAC is not possible and therefore such an appeal will also be declared inadmissible by the AAC.
2. In case of malicious prosecution, the legal representative of an asylum seeker who appealed a decision of the FOR may be ordered to pay the procedural costs himself.
