Switzerland: Federal Administrative Tribunal rules that national authorities failed to duly consider respect for family life and application of Article 17 of the Dublin III Regulation

Date: 
Monday, February 19, 2018

On 19 February 2018, the Swiss Federal Administrative Tribunal ruled in case E-4936/2017, which concerned the appeal by an Eritrean asylum applicant against the decision of the State Secretariat for Migration to reject the applicant’s request for re-examination of her asylum application. The applicant had applied for asylum in Switzerland in 2015, when the national authorities found that Italy was responsible for her asylum application following the criteria in the Dublin III Regulation. The applicant had submitted a first request for re-examination based on her relationship with an Eritrean national who had been granted refugee status in Switzerland, and a second request after she became pregnant and had a baby with her partner. The Swiss authorities rejected the request for re-examination after obtaining assurances from the Italian authorities that the applicants would be hosted in appropriate conditions upon their transfer to Italy. On a further appeal, the applicants claimed that the transfer would violate their rights under Article 8 ECHR.

The Federal Administrative Tribunal ruled that the national authorities had erred in concluding that the relationship between the father and his child does not fall under Article 8 ECHR – on the contrary, the Tribunal found that the decision to transfer the child to Italy constituted an interference with the child’s right to respect for his family life. The Tribunal also concluded that the national authorities had made a mistake in believing that the father would be able to maintain contact with his child while he resided in Italy, since a decision on the applicant’s asylum application in Italy was still pending and it could not been inferred that the child will be able to reside there in a legal and permanent manner.

Therefore, since the national authorities had failed to examine the proportionality of the child’s transfer with regard to his fundamental right to respect for his family life, the Federal Administrative Tribunal sent the case back to the State Secretariat for Migration to deliver a fresh decision and to adjudicate on the applicability of the sovereignty clause under Article 17 DRIII in connection with Article 8 ECHR or with the humanitarian clause under national law.

Based on an unofficial translation by the ELENA Weekly Legal Update.



This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Best interest of the child
Child Specific Considerations
Dublin Transfer
Family unity (right to)
Request to take back