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National Assessments

 

SWITZERLAND- Questionnaire for Country Assessment


 Evaluation Period - October 1999- April 2000


Reference(s): 
The Swiss International Social Service Foundation
10, rue Alfred-Vincent
P.O. Box 1469
1211 Geneva 1

Tel.: 0041-22/731 67 00
Fax: 0041-22/731 67 65
E-mail: ssi@freesurf.ch


 Organisations/ consultants
Federal office of civil aviation

Main texts:
Federal Constitution (Cst.) of 18 April 1999
Convention concerning the rights of the child of 20 November 1989
Federal law on the residence and establishment of foreigners of 26 March 1931
Federal law on asylum (LAsi) of 26 June 1998
Order on the execution of the removal and expulsion of foreigners (OERE) of 11 August 1999
Order number 1 on the procedure asylum (OA1) of 11 August 1999
Order number 2 on the financial asylum (OA2) of 11 August 1999
Direction concerning asylum requests listing unaccompanied minor applicants and of adults incapable of judgement (Asylum 23.2) of September 20, 1999
Order limiting the number of foreigners of 6 October 1986

 

TABLE OF CONTENTS

DEFINITION OF "UNACCOMPANIED MINORS"

1. ACCESS TO THE TERRITORY
2. IDENTIFICATION
3. A TUTOR?S OR A COUNSELOR?S DESIGNATION
4. REGISTRATION AND BASIC INFORMATION
5. AGE DETERMINATION
6. DETENTION 
7. PARTICIPATION RIGHT
8. FAMILY TRACING
9. FAMILY REUNIFICATION IN A EUROPEAN COUNTRY

ON SECOND PAGE
10. WELFARE / HEALTH / EDUCATION / TRAINING
11. PROCEDURE TO DETERMINE REFUGEE STATUS
12. LONG-TERM SOLUTIONS
13. DATA COLLECTION
14. INTERNATIONAL INSTRUMENTS

DEFINITION OF "UNACCOMPANIED MINORS"

a) Specify the definition used in your country. Depending on the organisations, different definitions can be used. Specify.

By virtue of its federalistic structure, several public and collective structures in Switzerland are in charge of matters relating to asylum requests: in decreasing order of importance, we find the Confederation (i.e. federal level), the cantons (i.e. cantonal level) and the townships (i.e. community level).

According to the Federal Constitution of 18 April 1999 "the legislation regarding the entry into Switzerland, the departure, the residence and the establishment of foreigners and the granting of asylum is a matter within the competence of the Confederation" (art. 121 Cst.)

By virtue of this competence, the Swiss Confederation has issued several laws, orders and directives in order to standardize the practices within the whole country. In particular, it relates to the federal law on the residence and establishment of foreigners (LSEE) of 26 March 1931, the federal law on asylum (LAsi) of 26 June 1998 (lex specialis), which came into effect 1 October 1999, and finally of the order number 1 on the asylum procedure (OA1) and of the order number 2 on the regulation of the financing (OA2). More particularly, regarding the unaccompanied minors, the federal Office of Refugees (FOR) has decreed a specific directive "concerning requests for asylum issued by unaccompanied minor applicants, and adults incapable of discernment" (Asylum 23.2) of 20 September 1999.

In accordance with the law on asylum, the Confederation has the jurisdiction, on one hand to initially attribute asylum to a refugee to a particular canton, where the person will be obliged to stay during the entire asylum procedure (art. 27 par. 3 LAsi) and, on the other hand, to rule on the request for asylum and the expulsion from Switzerland (art.25 LAsi). As for the cantons, they have been entrusted with the assistance (accommodation and framework) of persons who have requested asylum in Switzerland (art. 80 LAsi), and some of the cantons, in turn, delegate this competence to the communities which constitute them.

Under these circumstances, we have seen, in Switzerland, a plurality of practices, which is found in the level of the same definition of the notion of unaccompanied minors.

Thus, the federal proceedings (federal Office of Refugees (FOR) and the Swiss Commission of Revision Concerning Asylum (CRA), just like certain cantons, for example, Geneva, Vaud, Bale City, Valais or Tessin (the same goes for Liechtenstein), apply the definition recommended by the High Commission for Refugees (HCR) without restriction, and consider as unaccompanied minors all children under 18 years "who are separated from both parents and are not being cared for by an adult who by law or custom carries the responsibility". Adopting a definition a contrario, the Federal Office of Refugees (FOR) directives of 20 September 1999 states: "is considered as an accompanied minor he whose guardianship is in Switzerland.". Therefore, this is the definition that prevails regarding the allocation of the persons to the different cantons- meaning that upon arrival in Switzerland, the children are systematically attributed to the canton they are in, or in some cases, the canton of residence of their relatives- in matters regarding the asylum procedure and assistance.

Nevertheless, a number of cantons and, even more so, communities, persist on interpreting the definition of unaccompanied minors in a much more restrictive manner, deeming in particular that those who are accompanied by a relative (cousin, grandparent, older brother or sister, etc.) are not to be considered as unaccompanied minors. As one can imagine, this situation can have important repercussions, particularly regarding the caretaking and social assistance to the children concerned.

b) Are minors accompanied by brothers and sisters over 18 years old considered unaccompanied minors?

See above, § a

c) To what extent does this conform with the Statement of Good Practice?

The practices of the federal authorities and of the involved cantons conform to SGP.
On the other hand, the practice developed by the other cantons remains open to criticism.

d) Are reforms necessary regarding the basic principles of the Statement of Good Practice?

One must standardize the practice by restricting the last cantons/communities refusing to apply the definition of unaccompanied minors recommended by the HCR.

 

1. ACCESS TO THE TERRITORY

a) Describe the applicable right, the policies and practices.

In terms of the federal law on asylum, there are several possibilities of requesting protection in Switzerland: the candidate applying for asylum must also, by choice, present his/her request to a Swiss representation abroad, to a frontier post (land based or at the airport) or to a registration center (there are four in Switzerland, situated in the outskirts of the borders with France, Germany and Italy). Finally, those who already possess an authorization for residence in Switzerland, as minors under fourteen years of age coming to join their father and/or mother in Switzerland, have to present their request for asylum at the foreigners police of the canton where they are staying.

In 1998, out of the 41,302 people (adults and minors together) requesting asylum in Switzerland, only 1,593 made it to the frontier of an airport (71.1% of them were authorized to enter Swiss territory and the others were immediately sent back), 66 to a land based frontier post, and 610 to a Swiss representation abroad.

Among this last group, only 90 were authorized to enter Switzerland to await the result of their asylum procedure.

Moreover, 92.6% of the people who came into Switzerland to request protection in 1998 penetrated the territory by crossing the frontier illegally, by way of land. Thus, this is the case of most of the unaccompanied minors who entered Switzerland.

In 1999, out of 46,068 people requesting protection in Switzerland, only 880 made it to the airport frontier (63.6% among them were thus authorized to enter Swiss territory and the others were immediately sent back), 554 by the land based frontier post and 841 by a Swiss representation abroad.

Among this last group, only 129 were authorized to enter Switzerland to await the result of their asylum procedure.

Moreover, 84.1% of the people who came into Switzerland seeking asylum in 1999 penetrated into the territory by crossing the frontier illegally, by way of land.

Precisely, art.24 LAsi foresees that "if the cantonal authorities of the police intercept someone who entered Switzerland illegally near the border and who intends to seek asylum, they will indicate to him/her where they can present their request and they will hand them over to the authorities responsible for the border State". Paragraph 2 of this disposition specifies, however, that "if it is not possible to hand them over to the border State or if they seem to be exposed to danger because of one of the motives mentioned in article 3, paragraph 1 [whether because of their race, religion, nationality, membership to a social group or political opinions], or are exposed to a threat of inhumane treatment, they are sent to a registration center". The second hypothesis of this paragraph remains, however, very theoretical, by virtue of the nature of this procedure and the fact that the Swiss authorities presume that such a danger does not exist in the European countries.

Furthermore, it is necessary to mention that Switzerland concluded several agreements of readmission with its neighbors, with Germany (dated from 20 December 1993 and enforced on 1 January 1996), France (dated from 28 October 1998 and destined to replace the existing Agreement of 30 June 1965) and, more recently, with Italy (dated from 10 September 1998). One should note that these two instruments were approved on 22 April 1999 by the federal chambers, who ordered the federal Council to ratify them. Therefore, their entry by force will soon intervene. All of the Agreements state, with certain conditions, the readmission of people who are not citizens of either of the two States and who have illegally entered the territory from the other Party. But none of these conventions state any specific norm in favor of the unaccompanied minors.

Moreover, it has been seen, some unaccompanied minors arrive by airplanes and present their request for asylum at an airport frontier. So their asylum procedure starts with a preliminary procedure aiming at obtaining an authorization to enter the territory, also known as the airport procedure (art.22-23 LAsi).

The airport procedure takes the following steps: once the request is deposited at the airport police, the latter is responsible of informing of this demand without waiting for the federal authority of the first instance, namely the Federal Office of Refugees (FOR).

In case it is not immediately possible to determine if the conditions of obtaining an authorization to enter the territory are fulfilled, this office refuses temporarily entry to the person and notifies him/her, in the 48 hours following the filing of the request for asylum, a decision of allocation from a place of stay at the airport itself. This decision is open to appeal. At the time of the notification of this decision, the canton authority concerned appoints a trustee for the unaccompanied minors for the whole duration of the airport procedure (art.7, par. 4, OA1).

In parallel, a brief audition is carried out in the offices of the airport. The claimant (adult or minor) is thus heard in summary about his/her family situation and his/her prospective relative links with people living in Switzerland or in a third country, about the circuit used, the circumstances of his/her departure, the motives of asylum and finally the risks incurred, in case of returning to his/her country of origin.

On the basis of the minutes of the inquiry, three figure cases can be produced:

  • The FOR immediately grants the authorization of entry into the territory;

  • If it is a question of sending the person back to his/her country of origin, the FOR must send the file to the High Commission for Refugees (HCR). If the HCR reaches the conclusion that it is possible that the foreigner could be exposed to persecution risks in the sense of art.1 of the 1951 Convention, or to a risk of inhumane treatment in the sense of art.3 of the European Convention on Human Rights, in his/her country of origin, the FOR authorizes the person’s entry into Switzerland. The claimant is then sent to a center of registration where his request for asylum will be formally registered;

  • The HCR (respectively the FOR, if it is a matter of sending the person to a third country) concludes that there is no indication of persecution and the person is sent back to his country of origin from the airport without any further delay.



b) To what extent does this conform to the Statement of Good Practice?

Three points are contrary:



  • The unaccompanied minors is heard in the zone of transit in airports;

  • He could be retained in the transit zone of the airports [in practice, agreements have been reached with the Child protection authorities of two cantons where Swiss airports are located (Geneva and Zurich), so that the unaccompanied minor under the age of 16 is lodged into a specialized center];

  • The entry of an unaccompanied minor into the territory could be refused and his deportation to the place of departure can be executed directly from the frontier post where he deposited his request for asylum. He could also be the object of a procedure of readmission introduced by the State through which he transited by land.



c) Are reforms necessary regarding the principles of the basis of the Statement of Good Practice?

In order for these three points to be rectified in the sense of the systematic admission of unaccompanied minors into Swiss territory, it would be right to modify the norms in contradiction, in the related Agreements of readmission and the legal texts which regulate the procedures (LAsi and direction Asylum 23.2).

d) Does your legislation foresee any "sanctions towards transporters" by which airline, railway and shipping companies are to be subjected to a fine for having transported a passenger without a visa? Is this legislation applied to minors under 18?

To this day, Switzerland has not foreseen any specific administrative sanction regarding said transporters (cf. Report of the "Secretariat of the Inter-governmental Consultation on Asylum, Refugee and Migration policies in Europe, North America and Australia, September 1997, annex n° 4; telephone maintenance of 28 April 2000 with the Federal Office of civil aviation). However, the Swiss authorities have just started negotiations with Swissair, the national airline company, in view of introducing into the law the possibility to impose a fine on the aviation companies who permit passengers to get to Switzerland without possessing the necessary travel documents for entry.


 CHILD TRAFFICKING

e) Do you know of any child trafficking aiming at their exploitation in your country? In this particular case, cite briefly examples indicating the country of origin of the children and the nature of trafficking. Indicate examples of children having used the means of trafficking to request asylum in your country.

We do not know of any child trafficking.

However, since almost four years ago, the police has suspected such trafficking concerning some children brought from Congo-Kinshasa or Angola in general by unknown compatriots coming into Switzerland to join relatives. But according to us, the relatives concerned almost always recognized their link with the children who arrived in this way. In certain cases, this relative link was even confirmed by genetic analysis. For the moment, the police’s suspicions seem somewhat unfounded.

f) Have measures been taken to fight against this trafficking?

Not officially. As they were not demonstrated and very few children would be concerned, taking specific measures was not deemed necessary.

 

2. IDENTIFICATION

a) Describe the applicable right, the policies and the practices.

Upon their arrival in Switzerland, the unaccompanied minors are systematically identified as they are, and in this particular case, their relative link with the adults who accompany them becomes the object of a quite serious exam in principle.

However, tests of the bones (radiography of the hand according to the Greulich & Pyle method) are being enforced more and more systematically during the registration phase of the asylum request. But, because of the small degree of accuracy of these tests, it is feared that the number of unaccompanied minors identified as adults is by mistake, thus escaping the protection system set up in favour of the unaccompanied minors and in addition to that, thus risking an accelerated treatment of their asylum request, indeed even an immediate deportation from the registration center, with the purpose of attempting to cheat the authorities in their identities (cf. Infra, § 5).

b) To what measure does this conform with the Statement of Good Practice?

This general practice of bone tests is surely contradictory.

c) Are the reforms necessary regarding the principles of the basis of the Statement of Good Practice?

Yes, in the sense of renouncing the practice of bone tests by hand radiography as they are put into effect in the registration phase of the asylum procedure.

 

3. A TUTOR’S OR A COUNSELOR’S DESIGNATION

a) Is a tutor or a counselor appointed?

The law on asylum states that " if an unaccompanied minor applicant is attributed to a canton, the latter immediately appoints a trustee in charge of representing the child’s rights during the procedure" (art. 17, par.3 LAsi).

In the application of this disposition, art. 7 of the Order on the asylum regarding the procedure (OA1) of 11 August 1999 states that " in the presence of a minor asylum applicant who is not accompanied by a legal representative, and whose representative is outside Switzerland, the canton authorities or the town concerned order tutelary measures in terms of the Swiss Civil Code, in virtue of the law of the canton (the cantonal authorities), the decision of the allocation taken in conformity with art. 27 par. 3 of the law" (art. 7 par.2 OA1).

The protection measures thus used are either a guardianship, when the child indicates not having parents anymore, or a trusteeship, when the parents are abroad, the authority therefore esteems that they are simply unable to act in the favor of the child, which corresponds to one of the legal hypotheses of the trusteeship (art. 392 ch. 3 Swiss Civil Code ,SCC ).

However, in dispensing of this rule, paragraph 2 stipulates that "when it is not possible to immediately appoint a trustee or guardian in conformity with paragraph 2, the cantonal authorities appoint someone worthy of trust without delay for the duration of the asylum and the deportation procedures, this applicant’s mandate however ends at the moment of the nomination of a trustee or a guardian or when the person concerned reaches the majority." (art. 7 OA 1 par.3).

Speaking about different cantons’ solutions (on the basis of responses to the questionnaires)

b) What is their role?

The role of the tutor or the guardian is to watch over the support and the education of the child and to represent him/her in order to accomplish the judicial acts of his/her daily life (art. 405 SCC).

In the question of a trusted person, the mandate is more vague. In any case, this person is expressly in charge of accompanying and supporting the minor during the whole asylum procedure (art. 7 OA1 par.5). We will mention again that the federal law does not state anything with regard to the competent organs for his nomination and the control of his activities.

c) How long after their arrival are they appointed?

One or the other of these measures must, in principle, be ordered from the moment the person concerned is assigned to a canton in Switzerland in terms of the registration procedure of the asylum request. As a general rule, this assignment occurs in the two to four weeks following the deposition of the aforementioned request. In doing so, the FOR takes into consideration the legitimate interests of the unaccompanied minor, taking into account the presence of the family members in Switzerland, and the nationality, and particularly, the needs of the framework (art.27, par.3 LAsi; art.22 OA1).

Furthermore, we shall remind that in the case of the airport procedure, art. 7 OA 1, par. 4 states that "the canton authorities appoint a trustee from the moment of the notification of the decision [of the assignment to the transit zone] and for the duration of the airport procedure" (cf. Supra, ch. 1a, p.6).

d) What is their training?

Unfortunately, here too, the law remains silent at this point. The practice is still vague in this regard.

Speak of the different cantons’ solutions (based on the answers to the questionnaires)

e) To what extent does this conform with the Statement of Good Practice?

In principle, the system in effect in Switzerland seems to conform with the SGP. It has to be seen, if in practice, it is being enforced on the land will conform equally.

f) Are reforms necessary regarding the principles of the basis of the Statement of good practice?

According to us, it would be a question of imposing demands regarding the training and the independence (in comparison to the foreigners’ police authorities and the Federal Office of Refugees) of people brought to assume these protection mandates and regarding the control of their activities.

 

4. REGISTRATION AND BASIC INFORMATION

a) Describe the applicable law, the policies and practices

After having reached Swiss territory (cf. supra, §1) the minors must present themselves in one of the four registration centers that Switzerland recognizes, where their asylum request will be duly registered. The registration procedure involves taking fingerprints and a photograph, as well as the establishment of a statement, during a first interview, listing in summary the personal and family facts, the itinerary used to come to Switzerland and the motives that led the person to leave their country.

In terms of the directive regarding the Federal Office of Refugees of 20 September 1999 concerning the asylum requests listing the unaccompanied minor applicants and the adults incapable of discernment (Asylum 23.2), "unaccompanied minors’ asylum requests are given top priority (…). The minors capable of discernment are briefly interrogated. Until the decision of the allocation [in one of the Swiss cantons], which, for unaccompanied minors, must occur within a few days, no tutelary assignment or trustee being ordered. For the minors incapable of discernment, the legal representative must deposit the asylum request and undertake the necessary legal acts".

"At the time of the brief audition of minors, the personal facts, the family links and the environment in the country of origin, as well as the first information concerning the reasons for the departure from the country of origin must be established. The people accompanying the minor asylum applicant must be interrogated on their subject and their statements must be included in their files. Furthermore, the registration center in charge of the demand must present the most precise facts possible on the exact age and the capacity of discernment of the asylum applicant (…)" (Asylum 23.2, p.3).

Thus, even before the nomination of a legal representative in his favour, the Unaccompanied minor capable of discernment is interrogated by an official civil servant of the center, and not only on his identity, but also on his family and the reasons that forced him to leave his country.

In the case of an unaccompanied minor incapable of discernment, it is the legal representative who is supposed to represent him in the procedure and put together the necessary administrative steps. As the unaccompanied is by definition deprived of such a representative on his arrival in Switzerland, it is right to cease the tutelary authorities of the canton where the child concerned is in order to assign to him a trustee to represent him or a tutor.

Swiss law does not determine a particular age at which a child is presumed as capable of discernment. In fact, this capacity of judgement (art.16 of the Swiss Civil Code) is a relative notion, which will be admitted or not, depending on the nature and degree of complexity of the act in question. Regarding asylum, the Swiss authorities are rather strict: we thus know cases of children under 10 who were heard, briefly and superficially, however, in registration centers. The authorities estimate that, since these children were capable of getting to Switzerland alone, they must be capable of facing an asylum procedure, which will be a simplified one.

b) To what extent does this conform with the Guide to good practice?

At least for the minors capable of discernment, the practices prevailing in Switzerland concerning registration that hardly conform with the SGP (cf. Infra, § 4c).

c) Are reforms necessary regarding the basic principles of the Statement of good practice?

  • the unaccompanied minor should not be heard before the nomination of a legal representative and/or a proxy

  • the information gathered by the employees must be limited to a strict minimum

  • the child’s complete account should be received by a child protection authority, with the appropriate training in this field.

5. AGE DETERMINATION

a) Describe the applicable right, the policies and the practices

In terms of art. 7 par.1 OA1, "at the time of the establishment of the facts, it is possible to the determine the age indicated by the asylum applicant corresponding to his real age by resorting to scientific methods."

On this basis, and in case of doubt on the age indicated by the unaccompanied minor, the Federal Office of Refugees orders a radiology examination of the bones of the hand, according to the Greulich and Pyle tables. In case the result of this exam lead to believe in the subject's majority, the person is summoned a second time to the Center, in order to acknowledge the aforementioned result and explain this difference in age, and to sign a complementary statement consigning his declarations on the subject.

According to the figures officially given by the FOR, almost 80% of the analyses conclude the maturity of those concerned, so well that 4 out of 5 amongst them could therefore be "fake minors".

These last ones are exposed from then on to decisions of non-entries with cause, the FOR deems that the applicant has "cheated the authorities on his identity" (art.32, par.2 let b LAsi). As a consequence, the motives for asylum put forward by the youngster will not be examined by the authorities, who will only analyze (quite superficially) the executable characteristic of his deportation from Switzerland. The youngster concerned is thus exposed to being sent back, in a rather rapid manner, from the registration center, without even benefiting from an allocation to a canton and hence, the nomination of a legal representative or a trustee. From that point on, he is outside the whole protection system foreseen for unaccompanied minors.

Finally, it is necessary to specify that the Swiss Commission dealing with Asylum (SCA) should make a decision soon of principle, specifying a ( two or three years ?) discrepancy limit between the age of the bones and the declared age, beyond which the age of the bones would be assumed reliable.

b) To what extent does this conform with the Statement of good practice?

The practices described above are in complete opposition to the rules mentioned in the SGP. In fact, even if it seems legitimate that the authorities want to protect themselves against the fact that some applicants declare themselves falsely as minors, in order to benefit unduly from advantages exclusively extended to the latter, the problem is that they resort to a method whose scientific value is most debatable. In reality, taking into consideration the biological and ethnical specificities of each person, the discrepancies between the age of the bones and the chronological age could be of several years, on a given person.

As a consequence, it is questionable, and actually disputed by the agencies of mutual aid, to consider these exams as real tools of proof. In addition to that, in view of the seriousness of the infringement to the rights of the person, it is doubtful that the legal base being used, which is included in an order (namely a simple rule) emitted by the Federal Council, i.e. the executive authorities of the Confederation, is sufficient. In fact, in order to respect the demands of the constitutional rights such an infringement must be foreseen in a federal law, adopted by the legislator.

c) Are reforms necessary regarding the principles of the basis of the Statement of good practice?

These bone expertise-tests must be ruled out, either by resorting to other scientifically more reliable methods, provided they exist, or by applying the tests only in "blatant" cases; the other youngsters should benefit from the doubt (cf. in the sense of the decision of principle, which should be adopted soon by the SCA: supra, § 5a).

 

6. DETENTION

a) Describe the applicable law, the policies and practices

One has seen that the minors can be retained in transit zones (cf. Supra, § 1) when they deposit their request for asylum at the airport.

Otherwise, in virtue of the federal law of 18 March 1994, on the measures of constraint, accepted by the Swiss population when voting on 4 December 1994, by force since 1 February 1995 and integrated since in the ordinary legislation (as it happens, the federal law on the stay and establishment of foreigners), the canton authorities have the competence to pronounce the administrative detentions till the final theoretical duration of twelve months.

Thus, art.13a of the federal law on the stay and the establishment of foreigners permits the latter, in order to guarantee the proceedings of the procedure of deportation, to pronounce the detention for a duration of three months of a stranger deprived of regular authorization of stay or establishment (detention of the preparatory phase), in particular if this person:

  • refuses to reveal his real identity;

  • deposits several asylum requests under different names;

  • did not give after several times and without valid reason summons;

  • has returned to Switzerland, despite a decision prohibiting him from entering the country taken against him previously;

  • is or has become the object of penal pursues for having seriously threatened others or put their lives in serious danger or their physical integrity.



If a detention of deportation of first instance was notified, the detention can be extended (or pronounced) for a duration of three months (detention in view of rejection). Then, if particular obstacles obstruct the execution of the deportation, the cantonal authorities can decide on prolonging this detention for six months maximum.

Art. 13c par. 2 of the federal law on the stay and the establishment specifies however that "the legality and the adequacy of the detention must be examined within 96 hours at the latest by a judicial authority in terms of an hearing procedure".

In terms of art. 13c par. 3 in fine LSEE "it is out of the question to order the detention of preparatory phase or in view of rejection against children or adolescents less than fifteen years old". A contrario, the administrative detention of youngsters older than fifteen years is possible by Swiss law.

b) To what extent does this conform with the Guide to good practice?

The practices described above are in total contradiction to the SGP, since the detention of minors for reasons connected to their administrative status is authorized by Swiss law.

c) Are reforms necessary regarding the principles of the basis of the Statement of good practice?

It would be appropriate that art. 13 c par. 3 of the federal law on the stay and the establishment of foreigners, cited above, should be modified by the legislator, thus expressly prohibiting the detention of young persons under 18 years of age.

 

7. PARTICIPATION RIGHT

a) Describe the applicable right, the policies, and practices

By applying the right to be heard (art.29 par. 2 Cst.; art. 12 of the Convention on the Rights of the Child), the unaccompanied minor is heard at all stages of the asylum procedure, either orally or in writing.

Thus, at the time of registration of his asylum request, the unaccompanied minor is heard in a brief audition or, if he is incapable of discernment, through written intervention from his legal representative (cf. Supra, § 4). Then, in case of allocation to a canton, in principle, he is summoned to a second, more detailed audition, called "audition on the motives of the asylum request" according to the legal terminology (art. 29 Lasi). This second audition, known more commonly as the cantonal audition, since it is carried out by cantonal employees delegated by the Confederation, is actually questioned by the federal authorities, who envisage to delete it (cf. Infra, p.17).

One must specify that at this occasion, the subject (adult or minor) "can be accompanied by a proxy and an interpreter of his choice, as long as neither one is an asylum applicant" (art. 29 par. 2 LAsi). Furthermore, " the authorized support agencies send a representative to the audition (…), unless the applicant objects" (art.30, par. 1 LAsi). However, this representative attends the audition as an observer only, not as a participant. He can only "request that questions be asked in order to clarify the state of affairs, suggest that he be given other clarifications and formulate the objections against the proceedings of the statement" (art. 30, par. 4 LAsi).

As for the unaccompanied minor, he is "heard in the presence of his legal representative, the trustee or his mandated proxy, unless the trustee, legal representative, or proxy renounce their presence, which has to be explicitly stated in the file"(Asylum 23.2, p. 5).

In this regard, the Swiss Commission dealing with asylum (SCA) had the chance to specify, in a decision of principle of 31 July 1998, that in view of art.22, par.1 of the Convention on the Rights of the Child and the constitutional right- to be heard (art. 29 par. 2 Cst), "when the minor is not given a tutor or a trustee, and one cannot expect from the cantonal authorities to take adequate tutelary measures within reasonable time frame, one must foresee judicial assistance in favor of this minor before the first audition on the asylum motives".

However, in an attempt to accelerate procedures (for adults and minors), the federal authorities are preparing a series of measures whose details are still being studied. One of them consists of holding both aforementioned interviews at the registration center, shortly after submission of the asylum request, and consequently, suppressing the cantonal auditions.

But, as we have seen, taking into account the federal system that prevails in Switzerland and the division of competence, as a consequence in the Swiss Civil Code, the nomination of a legal representative is of the cantons’ responsibility. This decision thus occurs, in principle, only after the allocation of the minor to a canton, which takes place during the procedure at the registration center. One must thus pay particular attention to the content of the announced measures, which must imperatively anticipate the reforms with respect to the aforementioned art. 22 par.1 Convention concerning the rights of the child and 29 par. 2 Cst.

At the end of the two previously described auditions, the file is investigated by the Federal Office of Refugees, unless the later delegates this investigation to the cantonal authorities competent for asylum matters. The Office could proceed with complementary instructive measures (cf. Art. 41 par. 1 LAsi), specifically requesting specific information from the Swiss embassies abroad (embassy investigation), or by asking for expertise of documents to verify their authenticity. In virtue of the right to be heard, the asylum applicant will have the opportunity to express himself on the result (which will be communicated to him in the form of a more or less detailed summary) of each of these steps. The Federal authority can still proceed directly to a new audition of the person, known as the federal audition.

Finally, it should be pointed out that, in terms of art.7 par. 7 OA1, "the people in charge of the audition of the minor asylum applicant must take into consideration the different characteristics of the minority". This means that "the persons in charge of carrying out such an audition must do everything in their power for it to take place in an atmosphere adapted to the circumstances and take into account all the specific aspects to the minority (mainly the question of family relatives and the environment in the country of origin) must be addressed or completed in an adequate manner" (Asylum 23.2, pp. 5-6).

It must be noted that the different state or cantonal employees, in charge of enforcing the auditions of asylum seekers, have the possibility of participating in professional training courses, some of which address the problems of the unaccompanied minors. Regrettably, however, this training is not compulsory and besides that, neither is obligatory for the interpreters the administration usually resorts to, whose role, as spokesperson, is fundamental during the audition.

b) To what extent does this conform with the Statement of good practice?

The system enforced in Switzerland in this matter seems to correspond to the SGP.

c) Are reforms necessary regarding the principles of the basis of the Statement of good practice?

Not for the moment. But it will be necessary to look into this question again when the measures of acceleration of the asylum procedures announced by the Confederation are enforced.

 

8. FAMILY TRACING

a) describe applicable law, policies and custom

Depending on the age and specific situation of the unaccompanied minor, the Federal Office for Refugees (FOR) will endorse family tracing activities, either through the Swiss authorities in the given country (when the child is young or has specific health problems), or through the minor’s legal caretaker or agent. They will trace the family with the help of international organizations in those particular countries, especially the Tracing Agency of the International Committee of the Red Cross (ICRC) or the International Social Service (ISS). The results depend on the countries and the willingness of the minor to collaborate.

When this research is carried out by the FOR, the minor is not asked about the advisability of such a tracing, nor about possible risks for the family who is still living in the country. Swiss embassies will request reports from local "trustworthy legal advisors", but these reports – and the necessary investigations – are questionable. Swiss aid associations distrust them for lack of precision and thoroughness, and for occasionally providing faulty or biased information. Indeed, some of our diplomatic authorities may not have a thorough knowledge of the countries. Furthermore, because the legal advisors are not always competent, discreet or neutral, some problems may arise, leading to unreliable results or even causing difficulties to the family members still living in the country. For instance, in a particular case, the Swiss commission of appeal for asylum-related matters refused to believe the likelihood of the minor’s parents survival, as was alleged by the Embassy's informer, while the child had always claimed his parents had been killed. In the Appeal ruling, the informer was then described as not being "consistent in his declarations" and "unreliable". (27 March 2000)

b) is it consistent with the Statement of good practice (SGP)?

Since they provide little guarantee, as far as reliability and safety are concerned, Embassy investigations are not always consistent with the SGP.

Moreover – notwithstanding their reliability – the fact that such inquiries are not engaged at the stage of the airport procedures, nor in the cases where a decision is taken, not to pursue the claim to asylum any further, this is problematic.

As a rule, it is regrettable that the FOR, in spite of its resources via Swiss diplomatic authorities, only takes charge of family tracing for younger minors. Thus, adolescents depend on the availability, enterprise and willingness of the adult (reliable person, guardian) who has been asked, when needed, to accompany and support him during the asylum procedures.

c) should reforms be implemented to conform to the SGP?

Embassy personnel should be trained on asylum procedures and their specificity, at least in the countries where asylum seekers are the most numerous. Special emphasis should be placed on the imperative necessity that investigations should be precise and discreet.

Moreover, the FOR should lead field investigations more often for unaccompanied adolescents, as minority of age is clearly defined in the Convention on the Rights of the Child (under18 years of age).

 

9. FAMILY REUNIFICATION IN A EUROPEAN COUNTRY

a) Describe applicable law, policies and practices

Along with art. 8 §1 of the European Convention for Human Rights, the basic legal disposition is art. 3 §1 of the Convention on the Rights of the Child: the best interest of the child shall be the primary consideration.

There are two hypotheses:

Reunification of an unaccompanied minor living in Switzerland with his/her family living abroad:

Swiss authorities will not oppose to an unaccompanied minor leaving Switzerland, to be reunited with his relatives abroad. Whether this is feasible or not will depend on the destination country.

Reunification of an unaccompanied minor living abroad with a relative living in Switzerland



  • When the unaccompanied minor is seeking asylum, he/she is not eligible for family reunification. On this respect, when Switzerland ratified the Convention on the Rights of the Child, it made a reserve regarding art.10 § 1, so that a foreign citizen cannot claim any right, referring to this Convention, to be authorised to stay in Switzerland for the purpose of family reunification.

  • As for people temporarily authorised to stay in Switzerland (in the case, for instance, of "violence refugees"), they are not eligible either for family reunification. Competent authorities are free to appreciate its relevance (cf. art. 24 Order on the execution of the removal and expulsion of foreigners and art. 38-39 Order, limiting the number of foreigners; a parent should have the necessary financial resources to take care of the child). Exceptionally, within the environment of the "humanitarian" permit (art.36 Order limiting the number of foreigners), it is possible for a non-seeking asylum child to stay with his/her parents temporarily permitted to reside in Switzerland, for as long as they are staying in our country, without consideration for their financial resources.

  • According to art.51 §1 LAsi, the spouse and minor children of a refugee may be considered as refugees themselves and authorised to reside in Switzerland. If the child is staying abroad and filiation is proven, the child will be authorised in Switzerland on request (art.51§4 LAsi).



b) is it consistent with the Statement of good practice (SGP)?

c) should reforms be implemented to conform to the SGP?

As far as relatives without refugee status are concerned, temporarily authorised to reside in Switzerland, the authorities can freely appreciate the relevance of their request. This could lead to arbitrary decisions or excessive formality in practice.

People in the aforementioned categories should be granted the right to family reunification for the duration of their stay in Switzerland.

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