Switzerland: the Swiss Federal Administrative Court rules returns to Mogadishu no longer generally unlawful

Friday, October 18, 2013

In its judgment of 17 September 2013, D-5705/2010 (German), the the panel of five judges (indicating general significance) assessed recent country of origin information and concluded that situation cannot anymore be considered as one of extreme generalized and widespread violence that would lead to a real risk of inhuman treatment contrary art. 3 ECHR for every person living in Mogadishu. The Court does not mention the recent ECtHR judgment of K.A.B. v Sweden (no. 17299/12) (5 September 2013), in which the Strasbourg court reached the same conclusion.

This is the first Swiss case that has considered the question of return to Mogadishu in relation to Article 3 ECHR. Previously, the Court examined the situation in Mogadishu under the Swiss legal concept of 'unreasonability', which is used when a person cannot be expected to return to a country where there is a situation of generalized violence or civil war or for humanitarian reasons like severe medical problems. This change is due to the specific circumstances of the case, which concern a Somali man, whose commission of several criminal offences led to the revocation of his temporary protection in Switzerland. Under Swiss law, the 'unreasonability' concept cannot be relied on by persons who have committed a criminal offence, leaving the deportee to rely on Article 3 ECHR instead. Despite this change, the Court's reassessment of the situation in Mogadishu might influence future cases where the question is one of 'unreasonability'.

Read the full judgment of the Swiss Federal Administrative Court.

EDAL and the Weekly Legal Update would like to thank Seraina Nufer, the Swiss ELENA coordinator, for informing ECRE about this case.

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