Switzerland - Federal Administrative Court, A. (Eritrea) v. Secretary of State for Migration (SSM), March 4th 2019, E-7333/2018

Country of Decision:
Country of Applicant:
Date of Decision:
04-03-2019
Citation:
Federal Administrative Court, E-7333/2018
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Articles 7
17
105
106
108 of Law on Asylum (June 26th 1998) (LAsi) (RS 142.31)/ Loi sur l’Asile
Article 83
Law on the Federal Tribunal (June 17th 2005) (LTF) (RS 173.110)/ Loi sur le Tribunal Fédéral
Articles 31
32
33 Law on the Federal Administrative Court (June 17th 2005) (LTAF) (RS 173.32)/ Loi sur le Tribunal Administratif Fédéral
Articles 35
48 and 49 Federal Law on Administrative Procedure (December 20th 1968) (PA)/ Loi fédérale sur la procédure administrative
Article 112
Law on Aliens and Integration (LEI) (December 16th 2005) (RS 142.20)/ Loi fédérale sur les étrangers et l’intégration
Article 1 Order 1 on Asylum relating to procedure (OA 1) (August 11th 1999) (RS 142.311)/ Ordonnance 1 sur l’Asile
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Headnote: 

When deciding upon an asylum applicant’s age, authorities should assess the evidence in a holistic way, and not rely solely on medical examinations of the applicant. If, in the absence of sufficient evidence, authorities conclude that the applicant is an adult, they need to justify their decision by reference to the grounds for its conclusion.

Facts: 

The applicant, presenting himself as an unaccompanied minor, came from Eritrea to Switzerland, where he asked for asylum on June 20 2016. The SSM, being sceptical of the applicant’s age, initiated an analysis of his bone structure ( on the left hand) which found that his biological age was eighteen.

The applicant claimed that he did not possess any kind of identification document apart from a baptism certificate. The SSM set a birthdate amounting to civil age of majority for the applicant. It estimated that the asylum applicant had insufficiently proved his alleged minority, and based its decision on the absence of official identification documents, as well as on the applicant’s physical appearance and the results of the bone analysis.

Subsequently, on November 19th 2018, the SSM rejected his asylum application and ordered the applicant’s removal from Switzerland. It considered that the applicant had not credibly demonstrated his need for international protection status.

On November 21st 2018, the applicant lodged an appeal against this decision before the Federal Administrative Court, requesting its withdrawal.

Decision & Reasoning: 

The FAC started by enumerating the legal and jurisprudential rules governing proof of an asylum seeker’s minority. It noted that the SSM had to give a preliminary ruling on that matter, before designating a support person for the rest of the proceedings if the applicant is a minor.

The FAC recalled that, in the absence of official identification documents, the SSM had to make an overall assessment of the asylum seeker’s age, taking into account every element supporting or rejecting their minority. It emphasised that the minority will be recognised if it is seen as ‘likely’ under article 7 of the Swiss June 26th 1998 Law on Asylum (LAsi).

It is the SSM’s responsibility to determine the party’s age by asking targeted questions about, inter alia, their life course, academic and/or professional background. The FAC considered that neither physical appearance nor the bone analysis were of strong probative value when the applicant’s age was presumably above fifteen. It also noted that such results could not cast doubt on the applicant’s alleged age, unless the claimed age and the estimated age differed by three years or more.

This led the FAC to conclude that solely the results of the left hand bone analysis, combined with an evaluation of the applicant’s physical apperance, could not per se lead the SSM to establish the applicant’s majority without making an overall assessment of all elements provided.

The SSM’s appreciation in the present case was therefore arbitrary. The Court reiterated that the SSM had to justify and explain every decision, by mentioning the issues of fact and law that led to it. Yet, the SSM’s rejection did not contain such an explanation. It therefore followed that the SSM had violated its duty to state reasons for its decision.

Outcome: 

Appeal granted.

Subsequent Proceedings : 

This decision is final and is not subject to appeal.

Observations/Comments: 

While established case law exists on the procedure to be used in establishing the age of a young person claiming to be a minor, the auditors of the SSM regularly deviate from these principles in their decisions. The consequences for the young person, and the outcome of the procedure, can be considerable.

The judges of the Federal Administrative Court overturned several decisions of the SSM on that matter in the past year. It recalled the rules of procedure and warned the SSM against its flawed decisions.

For another example on the topic, see TAF E-1353/2019, available in french here.

In collaboration with other organisations supporting unaccompanied minors in Switzerland, the OSAR has drawn up a list of the fundamental elements that authorities should take into account when adressing this issue. The list includes the most recent guidelines and recommendations at international and European level. It is available in English here.

This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.

Other sources cited: 

Domestic Case Law Cited

Federal Administrative Court, April 26th 2018, E-6368/2016

Federal Administrative Court, August 8th 2018, E-891/2017

Federal Administrative Court, April 12th 2011, E-809/2011

Other Sources cited

CHAUMOÎTRE, COLAVOLPE, MARCIANO- CHAGNAUD, DUTOUR, BOETSCH, LEONETTI, PANUEL, Utilisation de l’atlas de Greulich et Pyle dans un but médico-légal : pertinence et limites, in : Journal de Radiologie, volume 88, no 10, octobre 2007, p. 1544, available at: www.sciencedirect.com/science/article/pii/S0221036307817574

Emanuele Sironi/Joëlle Vuille/Franco Taroni, Estimation forensique de l’âge des jeunes migrants, Une note sur la scientificité des méthodes employées en Suisse, in : Jusletter, 8 octobre 2018

MARCEL MAILLARD, commentaire ad art.63 PA, in : Praxiskommentar VwVG, Waldmann/Weissenberger [éd.], 2ème éd., 2016, no 14, p. 1314