Switzerland - Federal Administrative Court, 10 March 2016, D-5785/2015

Country of Decision:
Country of Applicant:
Date of Decision:
10-03-2016
Citation:
D-5785/2015
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Switzerland - Art. 6
7
8 Abs. 1 Bstn. a und b
31a Abs. 1 Bst. b
42
105
106 Abs. 1
107a Abs.2
108 Abs. 2
110a Abs. 3 AsylG
Switzerland - Art. 7 Abs. 2 AsylV 1
Switzerland - Art. 12
48 Abs. 1
52 Abs. 1
63 Abs. 1 und 2
65 Abs. 2 VwVG
Switzerland - Art. 5
21
25
31
32
33
37 VGG
Switzerland - Art. 83 Bst. d Ziff. 1 BGG
Switzerland - Art. 10 Abs. 2 VGKE
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Headnote: 

The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.

Facts: 

The applicant, an Eritrean national, travelled via Italy to Switzerland in May 2015 to reunify with her sister who is residing there. She stated that she was born in 1998 and should, therefore, be considered as a minor. The Swiss authorities questioned the stated age and initiated an analysis of the carpal bone with the result that her age was probably 18 or more years. Consequently, her application was refused by the Swiss authorities due to the lack of evidence concerning her minority and Italy was announced responsible for examining her asylum case. The execution of the removal and detention pending deportation was ordered. Shortly after her detentionshe had to be treated in an emergency hospital. Due to the threat of self-harm, she was not considered fit to withstand detention by the responsible physician. The applicant appealed the decision of the Swiss authorities to the Federal Administrative Court on grounds that she is an unaccompanied minor and therefore, according to Article 8 of the Dublin III Regulation, Switzerland is responsible for examining her asylum application.

Decision & Reasoning: 

The  Federal Administrative Court discusses whether the applicant is an unaccompanied minor and whether Switzerland is responsible for examining the asylum application according to the Dublin III Regulation.

First the Court examines whether or not the applicant is a minor. Therefore the applicant bears the burden of proof. Even though the results of the analysis of the carpal bone stated that the applicant's age is probably older than 18 years, the Court considers the statements of the applicant credible and therefore she was considered as a minor according to Article 2 letter i Dublin III Regulation. The Court argues that the results of the analysis are limited in terms of authoritative value. The divergent result is within the range of the normal deviation. Only where there is a deviation of more than three years of age, the analysis is considered as evidence. This is not the case.

The Court reviews the statements of the applicant and concludes that the statement suggests that she is a teenager rather than an adult.

In Italy the complainant was registered with the date of birth in 1991 and the Italian authorities have tacitly agreed to the transfer. The Court finds, however, that this does not render her statements unbelievable. Young refugees entering Europe want to either find work quickly or travel to a different European country directly. Therefore pretending to be an adult keeps them from additional procedures.

Further, the statements of the applicant's sister were taken into consideration describing the applicant as minor.

Second, the Court examines Switzerland's responsibility for the asylum application. Usually the state of first entry is responsible except where the applicant can prove or at least substantiate her minority according to Article 6 and 8 of the Dublin III Regulation. Therefore the applicant, as an unaccompanied minor, must have a family member or sibling who is “legally present” according to Art. 8 para. 1 of the Dublin III Regulation. It was discussed whether or not the sister of the complainant was “legally present”, particularly under the consideration of the best interest of the child. With regard to the purpose of Art. 8 the Court notes that it must be assumed that no high demands can be made on the presumed legal presence of a relative of the child. As the applicant's sister has a legal residency status during the asylum procedure, the requirements of Art. 8 para 1 Dublin III Regulation are fulfilled.

The Court concludes that the applicant was still a minor and Switzerland is responsible to proceed with the request for asylum according to Art. 8 para 1 of the Dublin III Regulation.

Outcome: 

Appeal granted and the contested decision must be annulled.

Observations/Comments: 

Noteworthy is that the judges argued from the point of view of the minor and considered her thoughts and aims when entering the EU (first entry Italy, afterwards Switzerland).Indeed, the best interests of the child was given as a main argument in the discussion on legal presence according to Art. 8 para. 1 Dublin III Regulation.

This case summary was written by Laura ThimmBraun.

 

Case Law Cited: 

Switzerland - Federal Administrative Court, E-2612/2008

Switzerland - Federal Administrative Court - E-5860/2013

Switzerland - Federal Administrative Court, 2007/8 E. 2.1

Switzerland - Federal Administrative Court, BVGE 2010/45 E. 7.2

Switzerland - Federal Administrative Court, BVGE 2011/9 E. 5