Publication
EMARK - JICRA - GICRA
Publication
EMARK - JICRA - GICRA
Decision
2006 / 1, English Summary
[Original decision] [Definition of Terms]
Art. 3 Asylum Law: no collective persecution of Tibetans in China; Art. 54 Asylum Law: subjective post-flight reasons for persecution of Tibetans who illegally left China
1. The present decision analyses the general situation of the Tibetan minority in China.
2. Tibetans in China are not subject to collective persecution as defined by AAC case law.
3. Tibetans applying for asylum in Switzerland, who did not stay in Nepal or India for any length of time after having illegally left China, may claim subjective post-flight reasons for persecution as defined by Art. 54 Asylum Law.
Decision 2006 / 2, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: reasonableness of forcible return to Somalia
1. In this decision, the AAC updates its analysis of the situation in Somalia.
2. Because of the chaotic situation and the continuing incidents of violence in the central and southern parts of Somalia, forcible return to these areas still qualifies as generally unreasonable. On the other hand, forcible return to Somaliland and Puntland may be reasonable under certain circumstances, i.e. if the person concerned has close ties to this region and has a basis of existence there or can count on support by a family clan. The sole fact of belonging to one of the major clans living in this region is not sufficient for forcible return to be reasonable.
Decision 2006 / 3, English Summary
[Original decision] [Definition of Terms]
1. Due to political reasons the punishment for conscientious objection and desertion in Eritrea is unreasonably severe. Persons who have a well-founded fear of being subjected to such a punishment shall be granted refugee status.
2. Fear of punishment for conscientious objection or desertion is well-founded in cases where the person concerned has been in actual contact with the military authorities. Such a contact may generally be assumed in case of desertion from active military service. Furthermore, every contact with authorities revealing that the person concerned was to be recruited is relevant.
Decision 2006 / 4, English Summary
[Original decision] [Definition of Terms]
Art. 44 paras. 1 and 2 Asylum Law; Art. 14a Law on Foreign Nationals: lawfulness, reasonableness and possibility of forcible return
Scope of the obligation to state the reasons for a decision concerning forcible return.
Decision 2006 / 5, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: reasonableness of forcible return
Forcible return to Burundi is generally reasonable as a result of the stabilization of the internal situation.
Decision 2006 / 6, English Summary
[Original decision] [Definition of Terms]
Art. 14a Law on Foreign Nationals: reasonableness of forcible return
1. The conditions for refraining from forcible return are of alternative nature. The return of an asylum seeker shall not be enforced if any one of the four conditions for refraining from forcible return mentioned in Art. 14a Law on Foreign Nationals are satisfied.
2. Furthermore the analysis of the situation in Sri Lanka has been updated. The precedents of the AAC remain valid; forcible return to the areas of Kollinochchi, Mannar, Vaviuniya, Mallaitivu and Jaffna in the north of the island is still not reasonable, whereas the return to the southern provinces is reasonable.
Decision 2006 / 7, English Summary
[Original decision] [Definition of Terms]
Leading Decision
1. Marriage by proxy is not manifestly incompatible with Swiss public policy (ordre public) if the spouses consider themselves as being legally married abroad and the proxy was duly authorized. If these conditions are met, the marriage is in principle recognized by Swiss authorities.
2. The permission for family members of a refugee who was granted temporary admission to enter Switzerland in the context of a family reunion does not, as a rule, require that the family was separated by flight; such a prerequisite only applies in cases where of a marriage was fraudulently contracted in order to obtain an entry permit.
3. Under current law, a waiting period generally does not have to be ordered in cases of a family reunion of refugees with temporary admission. Family reunion is in principle to be granted when applied for, except if the family in question has the possibility to move to another country within three years.
Decision 2006 / 8, English Summary
[Original decision] [Definition of Terms]
Art. 51 para. 1 and 4 Asylum Law, Art. 8 EHRC: family asylum
1. A family reunion in the sense of Art. 51 para. 4 Asylum Law requires a pre-existing cohabitation and that the family was separated by the flight.
2. If the family of a refugee entitled to asylum was not separated by flight, the alien police authorities have jurisdiction concerning family reunion and concerning possible claims based on Art. 8 EHRC.
Decision 2006 / 9, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: updated analysis of situation in Afghanistan; reasonableness of forcible return
1. The AAC updates its analysis of the security and health care situation in Afghanistan.
2. If the restrictive prerequisites mentioned in decision EMARK-JICRA-GICRA 2003 no. 10 (in particular if there are family members or relations who are able to provide support and if subsistence and accommodation are ensured) are met, forcible return to Kabul and to certain provinces in the north of Afghanistan, as well as to Heart, is reasonable. On the other hand, forcible return to the provinces in the east and south, which are predominantly inhabited by the Pashtuns, remains unreasonable.
Decision 2006 / 10, English Summary
[Original decision] [Definition of Terms]
Art. 14a para. 4 Law on Foreign Nationals: reasonableness of forcible return of ethnic minorities from Kosovo; updated analysis
Due to recent developments, forcible return to Kosovo of persons belonging to the Albanian speaking minority groups of Roma, Ashkali and Egyptians is generally reasonable, provided that investigations in each individual case have established that certain criteria of reintegration are met, for example regarding criteria such as professional training, health, age, economic means of existence and family structures that are able to provide support.
Decision 2006 / 11, English Summary
[Original decision] [Definition of Terms]
1. Forcible return to Kosovo of a Roma single mother and four under-age daughters, who have neither accommodation nor family structures that are able to provide support, is not reasonable.
2. Persons belonging to the minority groups of Roma, Ashkali and Egyptians in Kosovo generally do not have a reasonable domestic alternative to flight in the area of Serbia and Montenegro outside of Kosovo (confirmation of precedents EMARK-JICRA-GICRA 2001 no. 1 and 13).
3. According to the principle of proportionality, when examining the revocation of a temporary admission due to criminal behaviour, the public interest in the forcible return has to be balanced against the private interest of the person concerned in staying in Switzerland.
Decision 2006 / 12, English Summary
[Original decision] [Definition of Terms]
The application for restitution of the time-limit for filing an appeal, which was missed due to illness of the legal representative of the applicant, is denied.
Decision 2006 / 13, English Summary
[Original decision] [Definition of Terms]
Possibility of combining elements of a grave personal emergency situation and the unreasonableness of forcible return.
If, for procedural reasons, the existence of a grave personal emergency situation cannot be examined, the advanced assimilation of a person in Switzerland can only be taken into account as far asto the extent that it renders forcible return to the home country unreasonable due to considerable difficulty in reintegrating; in this context, the best interests of children involved have to be considered according to Art. 3 of the Convention on the Rights of the Child. This holding is especially relevant in cases concerning children going toattending school in Switzerland or adolescents who have been living in this country for an extended long period of time (cf. EMARK-JICRA-GICRA 2005 no. 6).
Decision 2006 / 14, English Summary
[Original decision] [Definition of Terms]
1. The guardian ad litem of an unaccompanied, under-aged asylum seeker has to attend to the interests of his ward during the asylum proceedings. This key task defines the aptitude, the necessary training and the standard of performance of regarding the duties by of the guardian ad litem.
2. Where If thea guardian ad litem (obviously) acts contrary to the interests of the an unaccompanied, under-aged asylum seeker or fails to take (obviously) necessary action, this his/her conductconstitutes may be grounds for the assertion of a violation of the constitutional right to be heard.
Decision 2006 / 15, English Summary
[Original decision] [Definition of Terms]
If the forcible return of a rejected asylum seeker is objectively and permanently obstructed, he is entitled to make a request for review of an FOM-decision (cf. EMARK-JICRA-GICRA 1995 no. 14).
Decision 2006 / 16, English Summary
[Original decision] [Definition of Terms]
Return to Sierra Leone is considered as generally reasonable for unmarried young and middle-aged men and for families without children. The return for of persons who are ill or not fit for work is only reasonable in case of individually favourable circumstances. As a rule, forcible return is not reasonable for single women and persons with small children.
Decision 2006 / 17, English Summary
[Original decision] [Definition of Terms]
1. In this decision the commission initially analyses the general situation of the Yezidi minority in Iraq.
2. Yezidis are not subject to collective persecution as defined by AAC case law (cf. EMARK-JICRA-GICRA 2006 no. 1).
Decision 2006 / 18, English Summary
[Original decision] [Definition of Terms]
Leading Decision
1. When applying Art. 3 Asylum Law consistently with international law and in light of the Geneva Refugee Convention, the relevance in refugee law of persecution by non-state agents has to be recognized (distinction from earlier case law, (cf. EMARK-JICRA-GICRA 2004 no. 14; transition from accountability view to protection view).
2. Pursuant to the refugee law, a person who can find protection from non-state persecution in his or her country of origin does not qualify as a refugee. Protection can be provided by the country of origin as such, by a specially qualified “quasi-state”, as defined by the AAC-precedents (cf. EMARK-JICRA-GICRA 2000 no. 15, 2004 no. 14), or possibly by certain international organisations.
3. Protection from persecution by non-state agents in the country of origin is sufficient if the person concerned has effective access to a functional and efficient infrastructure of protection and if takingthe possibility to take advantage of such a domestic protection system is reasonable in the individual case. The authority deciding this hasis required to examine the situation and provide the specific reasons for the specific effectiveness of protection in the country of origin.
Decision 2006 / 19, English Summary
[Original decision] [Definition of Terms]
Contrary to the previous analysis of the situation in northern Iraq (cf. EMARK-JICRA-GICRA 2000 no. 15 and 2002 no. 16), persecution by the “Kurdistan Democratic Party” (KDP) or the “Patriotic Union of Kurdistan” (PUK), respectively by those who exercise power or represent authorities within the areas that are controlled by these parties, is considered as state persecution. Therefore, no part of the country constitutes a general domestic alternative to flight.
Decision 2006 / 20, English Summary
[Original decision] [Definition of Terms]
This case concerned Hthe question of how to deal with a request claiming post-flight reasons for persecution that is made after the asylum procedure has been closed. claiming post-flight reasons for persecution
Decision 2006 / 21, English Summary
[Original decision] [Definition of Terms]
The denial of a request for pro bono legal services by the FOM in an interim order cannot be separately appealed against before the AAC.
Decision 2006 / 22, English Summary
[Original decision] [Definition of Terms]
Prerequisite A prerequisite for an immediate expulsion to a third country based on Art. 42 para. 2 (b) Asylum Law is that the asylum seeker involved has previously stayed in that country for a longer than transitory period of time. This previous stay cannot be substituted by the fact that a visa has been issued by the third country.
Decision 2006 / 23, English Summary
[Original decision] [Definition of Terms]
Leading Decision
1. This decision concerned the Rrelationship between (revocation of) temporary admission by the asylum authorities and expulsion by a criminal court on account of a criminal offence based on Art. 55 Penal Code (specification of decision EMARK-JICRA-GICRA 2004 no. 10).
2. A temporary admission granted according to Art. 14a para. 4 Law on Foreign Nationals because of unreasonableness of forcible return may be revoked based on the basis ofon Art. 14a para. 6 Law on Foreign Nationals on the grounds of a violation or serious endangerment of public order and safety (specification of decision EMARK-JICRA-GICRA 2001 no. 17).
Decision 2006 / 24, English Summary
[Original decision] [Definition of Terms]
1. By merely statingMere statements by the FOM that the Russian state State respects its obligations towards orphaned children as far much as possible and that Russian authorities can be asked for protection against assaults in orphanages , the FOM hasdo not sufficiently taken into accountdelineate the actual situation of the applicant in the present case: , who the applicant grew up in an orphanage under very difficult circumstances, was repeatedly abused and was also victimised by the police. Therefore the The FOM has thus violated the obligation to state the reasons for its decision.
2. When assessing the reasonableness of forcible return of an unaccompanied under-age asylum seeker, the standards of international law demand that specific inquiries are made concerning as to the personal situation of the asylum seeker under the perspectiveaccording to of the best interests of a child (cf. EMARK-JICRA-GICRA 1997 no. 23, 1999 no. 2). The general statement that forcible return of an orphaned boythe above mentioned applicant to Russia is reasonable because there are adequate institutions he can turn to or that because he can return to the orphanage he came from, does not constitute a sufficient ascertainment of the legally relevant facts of the case.
Decision 2006 / 25, English Summary
[Original decision] [Definition of Terms]
1. This decision initially analyses the general situation in Darfur, especially since the escalation of the conflict in the year 2003 is analysed.
2. The assaults by the Janjaweed against ethnically defined groups of victims can constitute a persecution in the sense of Art. 3 Asylum Law. Considering the support of the Janjaweed militia by the Sudanese government, people from Darfur do not have any domestic alternative to flight.
Decision 2006 / 26, English Summary
[Original decision] [Definition of Terms]
1. Firstly This decision initially analyses the general situation of the Syrian Orthodox Christians in Turkey is analysed.
2. In Turkey, Syrian Orthodox Christians are generally not being persecuted solely because of their faith. Turkish authorities are both willing and apt able to grant them protection from assaults by private persons.
Decision 2006 / 27, English Summary
[Original decision] [Definition of Terms]
1. The This decision considers the development of the situation in Bangladesh after the accession to power of the “Bangladesh National Party” (BNP) on 1st October 2001 is analysed. Members and sympathisers of the opposition party “Awami League” (AL) may be subjected to unjustified harassment by authorities when attending party meetings;. hHowever, this does not constitute a collective persecution in the sense of Art. 3 Asylum Law.
2. Often tTrials before the lower courts, which stand are under the influence of the government party, are often not unfair because of the omnipresent corruption In in the Bangladeshi judicial system. The Supreme Court of Bangladesh is more independent, but its jurisprudence has only has a limited influence on the legal reality;. fFurthermore, persons who want to gowish to bring cases before the Supreme Court face high court fees.
3. Also Mmembers of religious minorities too, suffer from the critical human rights situation and the climate of increased violence, namely in detention facilities and interrogation centres.
Decision 2006 / 28, English Summary
[Original decision] [Definition of Terms]
When issuing a new decision after the AAC ordersed the reopening of proceedings by the FOM , instructions given by the AAC have to be followed. The obligation of the FOM to assess the capacity of an asylum seeker to understand the hearing on regarding his the latter’s reasons for seeking asylum,asylum is a corollary of the constitutional right to be heard.
Decision 2006 / 29, English Summary
[Original decision] [Definition of Terms]
1. In case of exclusion from refugee status according to Art. 1F (a) Geneva Convention the administrative authority does not decide whether the asylum seeker in question is criminally guilty of crimes against peace, war crimes or crimes against humanity. The court shall only determine whether there is sufficiently concrete evidence that the person concerned is personally responsible for such reprehensible acts.
2. Crimes against humanity presuppose grave or systematic assaults against the a civilian population.
3. According to the rules concerning the burden of proof and the obligation to state the reasons for a decision, the authority has to point out to whatthe extent to which the asylum seeker is individually responsible for reprehensible acts in the sense of Art. 1F (a) Geneva Convention.
Decision 2006 / 30, English Summary
[Original decision] [Definition of Terms]
The principle of commensurability has to be taken into consideration when examining the revocation of a temporary admission on account of criminal acts.
Decision 2006 / 31, English Summary
[Original decision] [Definition of Terms]
In this decision the general situation in Nepal is analysed. In the opinion of the AAC, forcible return to Nepal is not generally unreasonable.
Decision 2006 / 32, English Summary
[Original decision] [Definition of Terms]
Leading Decision
1. Particularly in rural areas of Ethiopia, there is no adequate state protection is available for women who are abducted for the purpose of marriage. A domestic alternative to flight may be available - namely in Addis Abeba - but this depends on the specific circumstances of each case. There is no domestic alternative to flight if the perpetrator has countrywide influence and connections.
2. Persecution solely based solely on gender can be relevant according to Art. 3 para. 1 Asylum Law.
Decision 2006 / 33, English Summary
[Original decision] [Definition of Terms]
Leading Decision
If an asylum seeker can furnish prima facie evidence that he is persecuted despite his asylum application having been denied by a member-state of the European Union or the European Economic Area (EEA), the request for asylum has to be declared admissible; even if he the asylum seeker cannot cite any events relevant for refugee status which that have taken place since the application was first made in the third countryin the meantime, he is still entitled to have the request declared admissible.
