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National Assessments

SWITZERLAND- Questionnaire for Country Assessment

TABLE OF CONTENTS

10. WELFARE / HEALTH / EDUCATION / TRAINING

a) Describe applicable law, policies and practice

To the best of our knowledge, there is no federal or cantonal legislation dealing specifically with the social welfare of unaccompanied minors in Switzerland. The only related text is art.11 Cst: "children and young people have the right to adequate protection of their integrity and to the encouragement of their development."

General Caretaking Situation

The allocation of MNAs is handed down from the Federal Government to the cantons, which have no rules on how the MNAs are to be cared for. Therefore, initial accommodation is also different from canton to canton:

There are cantons which have built their own infrastructure on which to deal with MNAs. This determines both care and legal representation in civil affairs.
A large number of cantons have no special infrastructure for accommodation plans for MNAs. How care can be provided is decided per individual case.
Some cantons place the children and young persons in centres where contacts from within the team will be assigned to them.

Most cantons make a distinction between MNAs under 15-16 years and those older in regard to care. The latter are usually treated as adults, with no particular educational care provided.

Special Care

Whether there is a need for special education will be determined by the educational service providers within the asylum system. It is then up to the canton to request that appropriate measures be taken. This is done through a petition stating the reasons for special education which is presented to the local government by the child’s government-appointed guardian

If any doubt as to the young person’s age exists, the real age will be confirmed by an examination measuring the length of the individual’s bones. This examination will, for the most part, be immediately conducted at the Governmental Office of Immigration. A large percentage of the young persons which enter as MNAs will thereby be classified as 19 or 20 year olds.

With MNAs, it’s important to find out whether the parents or other close relatives are already in Switzerland and if the MNAs could live with them if need be. Placing children with their parents in a family situation will always be permitted. Giving MNAs accommodation with other relatives is either supported or hindered depending on the canton. There are also cantons which don’t classify "would be" MNAs as MNAs if they enter with adults. These cantons also don’t check on the care situation or the motives of the families hosting these children. All school-age children have the right to attend school. The majority of cantons also offer preparation courses before integration into the public school system.

The deciding factors in whether or not a permit for vocational training will be given are first and foremost based on the asylum process, and not on the developmental needs of the MNA.

A work permit for vocational training is difficult to obtain in most cantons, even when the repatriation of the young person on a temporary or, more often on a more permanent basis is highly unlikely. There is a fear of a knock-on effect if the rules in the area of education are too liberal. Only a very limited number of cantons support the vocational training of these young people.

Legal Representation

In approximately 50% of the cantons, legal representation will be seen to by the government-appointed guardian upon arrival of the MNA. The other cantons have no automatic course of action. Each care-taking facility must file an application which clearly states the reasons that legal representation should be provided. According to the ZGB, MNAs have the right to legal representation. This fact is not enough to provide asylum-seekers with legal representation as well. In most cantons, young persons over 16 years of age will be treated as adults.

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

Up until a few years ago, the situation of MNAs was not particularly attended to either in terms of legal process or care. Through initiatives taken by a few cantons and social workers in the asylum system, the topic of MNAs has been brought to the forefront, all the way up through the highest authorities of the system. In addition, special guidelines for processing have been enacted, and special training for consultations with MNAs has been made available.

The care and legal representation of MNAs are dealt with by the cantons, or more precisely, by communities. These communities are free in terms of how they structure these two factors. There are therefore some cantons which suspend the power of the ZGB over the MNAs. In 1998, the Asylum Committee determined that every MNA requires a legal adviser for the legal proceedings.

Overall, it could be said that only certain aspects of the Swiss regulations for the initial admission of MNAs are fulfilled according to the demands of the SGP. These aspects vary greatly from canton to canton.

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

d) Describe applicable law, policies and practice

Medical care is equivalent to normal care. All children have the right to basic medical care as long as the medical services provided will be financially covered by the obligatory health insurance. Therapeutic measures taken in the rehabilitation of disorders will not automatically be financed. The child must rely on the doctor for the provision of the prescribed treatment. Up until recently, the cantons had the authority to allow treatments up to 2,000 Swiss francs.

Since January 1, 2000, the health sector has been standardised;it is up to the discretionary powers of the cantons which non-covered medical services will be financed. This also produces certain consequences in terms of care and special support; the government only makes a flat-rate contribution. It is then up to the cantons which additional services they wish to provide. No definite practise has been developed yet. The following conclusions can be made:

Basic medical coverage is provided for all asylum-seekers in Switzerland.
Therapeutic and special pedagogical treatments are within the discretionary powers of the canton. The Federal Government only involves itself in these treatments in the form of a small contribution.
Dental care is guaranteed; but only to treat pain.
Further dental care will only be provided if it is proven that non-treatment can lead to developmental disorders with lasting damage.

e) is it consistent with the SGP ?

Basic medical care is provided. Children which require special care and treatment cannot simply count on them being provided.

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

Education, language learning, training

g) Describe applicable law, policies and practice

Art art.19 Cst, guarantees every child (regardless of their legal status) the right to adequate and free primary education. This right is limited to the period of compulsory schooling; in Switzerland , school-leaving age is approx. 15 years.

In most cantons the children will be put into age-specific German, French or Italian language groups, and afterwards integrated into public schools. Some cantons or communities separate the asylum-seeking children from the other pupils. But most school systems use an integrated model whereby the Swiss and non-Swiss children will be mixed following a time of preparation for the non-Swiss children. A basic problem in the schooling of refugee children is that their levels of education are often inconsistent. Therefore complete educational integration is difficult. Their German or French knowledge is often not good enough. Frequently they also have gaps in their education as a result of fleeing; this hinders their placement within their own age group in school. Officially, no courses in their mother tongue will be offered. There are some ethnic groups which, of their own initiative, offer such courses for their children. The vocational training of the young refugees will be found to be difficult in 2 ways:

First through rules which have been developed in order to protect the Swiss job market from a foreign workforce.
Secondly by the legal status of many young refugees.

In Switzerland career training is generally classified under the laws concerning career/vocational training. According to this classification, minors will be allowed to be taught only in recognized vocational training programmes. Foreign youngsters need a work permit from the Police for foreigners, whose permit granting systems differ from canton to canton. In most instances, however, the opinion is that these young people should not do any training. A permit will only be granted if the young person finds an employer as well as further people who are willing to provide them with solid support. The employer and the young person must sign a clause in the training contract which stipulates that the conditions of the training can be dissolved in the event of deportation. Whether deportation can be postponed until the completion of training is dependent on the goodwill of the individual Police officer.

Due to this current legal system, only a very small number of businesses train young refugees. The level of administrative work and personal commitment needed for the employment of such young persons is considerably higher than for Swiss youth or youth with a secure status. This is due to the above mentioned rules. Taking on such young persons often means wasted effort and time. In addition, the uncertainty of whether the foreign authorities will give the refugee the chance to complete the training, and whether the refugee will be deported during the training, makes those who offer training hesitate about accepting refugee minors.

h) is it consistent with the SGP?

According to the standards of the SGP 10.3, only public school attendance is to be made possible. The following requests are not fulfilled:

regular lessons in the mother tongue in order to preserve cultural identity
entrance to the workforce – educational training possibilities will hardly ever be realised

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

11. PROCEDURE TO DETERMINE REFUGEE STATUS

Access to regular procedure

a) Describe applicable law, policies and practice

Asylum Procedure (cf also supra § 4 and § 7)

When foreigners legally apply for asylum in Switzerland , the request is dealt with by the competent authorities (the FOR), in conformity with the Geneva Convention. Nevertheless, as happens with adults, a decision not to pursue further can be taken, in particular in such cases of safe third country or manifestly unfounded claim.

Any decision regarding unaccompanied minors can be subject to appeal to the Swiss commission of appeal for asylum-related matters (SCA), sole authority for appeals in Switzerland . Appeal should be made within 30 days. However if there is a suspensive effect attached to the status denial in the ruling of the first instance, the applicant should ask for the restitution of the suspensive effect to the SCA within 24 hours. (cf. 11g) This happens mostly when the applicant is still at the CERA (RefugeeCenter ) at the time of the decision.

Judicial representation

d) Describe applicable law, policies and practice

In virtue of art.11 §1 of the federal law on administrative procedure (PA), the litigant may be represented by or receive aid from a professional representative at all times during the procedure. Unaccompanied minors may choose their representatives themselves, if they have discernment (strictly personal right). If the unaccompanied minor does not have discernment, this right is transferred to his or her legal caretaker.

However, unaccompanied minors are not always systematically granted a representative.

Specialized legal aid may be requested in the case of appeal procedure, if it seems possible to win the case and if the representative holds a lawyer's title (art.65 §1-2 PA).

In some cantons (Zurich and Geneva), there are agreements between the cantons and aid associations in order to provide support and representation to minors by specialized lawyers, appointed by the representative during the first and second instances of the asylum procedure.

In the case of unaccompanied minors under age of discernment, the caretaker collaborates with administrative authorities to collect all the elements necessary to defend the interests of the minor.

e) Is it consistent with the SGP?

Only the legislation in Zurich and Geneva seems consistent. In the rest of Switzerland, save for children under age of discernment, it is left to the initiative of the unaccompanied minor or other people around him to appoint a juridical representative. Moreover, it is more than unlikely that they will be able to afford such representation.

Besides, except under particular circumstances (e.g. when there is family in Switzerland or if medical assistance is necessary) it is nearly impossible to control the activity of the legal caretaker of an unaccompanied minor under age of discernment. An unaccompanied minor under age of discernment cannot freely appoint a representative for the asylum procedure. This creates differences in casework, since the unaccompanied minor's interests may be assessed differently depending on the legal caretaker.

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

All cantons should set up and finance (with the help of the Confederation) specialized services of legal aid, capable of offering a follow-up of the unaccompanied minor as soon as he/she arrives in Switzerland , including a possible airport procedure.

Minimum guarantees for procedure

g) Describe applicable law, policies and practice

When asylum is denied and deportation is pronounced by the FOR, there is only one instance of appeal: the CRA. This is the jurisdiction of last resort for appeal against FOR rulings in cases of asylum denial, decision not to pursue further, return, asylum expiry, or withdrawal of temporary residence permit (art.105§9 LAsi).

Appeal must be submitted within 30 days (art.50 PA) or within 10 days in cases of denial of entry in Switzerland or decision not to pursue further, e.g. when there is fraud on the applicant’s identity (art 107§1, 108 LAsi).

When enforcement is to be immediate, the applicant can submit within 24 hours to the Appeals Commission (CRA) a request for suspension of application. He/she must be informed of his/her rights. The CRA shall deal with the request within 48 hours (art.112§1-2 LAsi). When a request for refusal of application is submitted within 24 hours of the notification, enforcement is delayed until the CRA adjudicates. (JICRA 1995 n°3)

Within the environment of his/her right to be heard (art 29 PA), the unaccompanied minor is entitled to submit the evidence in favor of his/her asylum request. (art 33§1 PA)

The asylum procedure is ruled by the principle of the instruction procedure (art. 12 PA), that means that the FOR has to provide the corresponding proof and has to research the pertinent facts, from the juridical point of view.

h) is it consistent with the SGP?

The new law on asylum (except in directive 23.2), as was the case with the former law, no longer indicates that an asylum procedure submitted by an unaccompanied minor shall be treated with priority.

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

Independent assessment

j) Describe applicable law, policies and practice

The assessment of discernment of the minor by an independent expert is not systematic.

Moreover, this assessment usually occurs after allocation to a canton, because cantonal authorities are the only ones competent to determine whether an unaccompanied minor should have a guardian or curator.

When doubts remain regarding the discernment capacity of the child, as a rule, cantonal authorities refer the case to a tutelar authority for an assessment (directive 23.2 §3.4.2) within the shortest possible timeframe.

k) is it consistent with the SGP?

Said assessment does not occur directly after the arrival of the unaccompanied minor in Switzerland.

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

An unaccompanied minor should automatically and systematically be granted a representative at the stage of the CERA (RefugeeCenter ) or at the airport, without awaiting cantonal allocation.

Interviews

m) Describe applicable law, policies and practice

At the RefugeeCenter , unaccompanied minors are briefly interviewed on their personal data, their relatives, and the environment in their country of origin. Persons accompanying the applicant must also be interviewed regarding the applicant, and their statements be part of the file. In addition the FOR agent dealing with the request shall present information as accurate as possible on the estimated age and capacity of discernment of the minor. (directive 23.2 § 3.3)

In the canton, when the discernment of the unaccompanied minor is not questionable or is seems very likely, cantonal authorities interview the applicant. He/she must collaborate to the establishment of the facts. (art. 8 LAsi) He/she is heard in the presence of the legal guardian, trustee or mandated representative. The interviewer should make sure that the interview takes place in an adequate environment and that all aspects related to minority (such as relatives or environment in the country of origin) are properly and thoroughly addressed. (directive 23.2 §3.4.3; art. 7§7 OA1).

n) is it consistent with SGP?

Swiss practices are not consistent: unaccompanied minors are not assisted by a representative as soon as they arrive in Switzerland , nor for the duration of the whole asylum procedure (first and second instance).

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

Yes. Unaccompanied minors should be assisted by a designated legal representative as soon as they arrive in Switzerland , and during the whole asylum procedure (first and second instance).

Criteria for determination of refugee status for separated minors

p) Describe applicable law, policies and practice

a) According to art. 3§1-2 LAsi refugees are "people who, in their country of origin or in the State of last residence, were subject, or fear to be subject of severe prejudice, on the grounds of their race, religion, nationality, affiliation to a given social group, or political opinions. Are considered as severe prejudice: threats to life, to physical integrity, to freedom, as well as measures causing unbearable psychic pressure. Reasons for escape which are specific to women shall also be taken into account."

According to art.3§2 LAsi, a contrario, motives of escape specific to children are not taken into legal consideration as such. Still, they may be taken into consideration to evaluate, for instance, the existence of family co-responsibility (responsibility of the whole family for the crime one of its members is suspected having perpetrated) or premeditated persecution.

b) In art.7§1 LAsi, "a person seeking asylum shall prove or at least make plausible that he/she is a refugee". §3 defines as not plausible "allegations which, on essential aspects, are insufficiently founded, are contradictory, do not correspond to facts or rely in determining manner on false or forged evidence."

c) SCA jurisprudence (JICRA 1997 n°14, pp.106 sv., 2b) gave conditions for the determination of refugee status :

The applicant for asylum must be personally targeted and exposed to severe (i.e. significant) prejudice, or rightly fear so, in a foreseeable future when returning to his/her country of origin, on grounds related to race, religion, nationality, affiliation to a given social group, or political opinions ;
The prejudice, whether actual or feared, must result directly or indirectly from a government or assimilated to a state agent of persecution ;
There must be a sufficiently precise temporal or material causal link between prejudice and departure from the country, or, better yet, a fear of future persecution must remain at the time of flight from the country, respectively at the time when the decision on application is taken;
It must rule out a possibility for seeking refuge internally, in other words the applicant must not have the possibility to find effective protection against persecutions in another part of his/her country of origin.

d) When examining the refugee status of an unaccompanied minor, the FOR will first take into consideration the degree of precision and the consistency of his or her declarations, comparing the latter with data it has at its disposal on the country of origin of the applicant and other file documents. In practice, authorities will take into account the age and maturity of the child, and especially his ability – or lack– of discernment, to explain his/her motives for asylum. More weight will be given to objective facts (family co-responsibility, intended persecution, situation in the country of origin, means of evidence) when the applicant is young.

In reality, asylum decisions for unaccompanied minors are rare in Switzerland . Characteristics suggested in the SGP are taken into account when examining the return to the country of origin, in particular the eligibility for return of the unaccompanied minor. (art.14a LSEE; art.44 §2 LAsi)

e) When the asylum request is denied, or decision is taken not to pursue further, the FOR systematically examines the return to the country of origin and its enforcement (art.44§1 LAsi). Possible measures taken by the legal representative (e.g. placement in a foster family) are not opposable to the decision of return. (directive 23.2)

Aspects relating specifically to minority are assessed at the time of decision of return. This means that from this early stage, problems likely to occur in terms of welfare and supervision in the country of destination are examined, and the necessary investigations led. It is to be noted that the authorities do not have to take an active role in the search for evidence if the applicant for asylum does not comply with his duty to collaborate (e.g. if he/she misled authorities on his/her nationality). Other than the applicant’s declarations and the results of the investigations, the FOR bases its evaluation on the age of the applicant, his/her degree of autonomy and the social and economic realities of the country of origin.

When return may not reasonably be requested, in other words, if it implies putting the foreigner at risk (e.g. the unaccompanied minor would not receive vital health care in his/her country of origin or would be left alone due to lack of the necessary family or social environment), the FOR emits a temporary residence permit in Switzerland. This authorization is valid one year, and is renewable if necessary (art.14c §1 of the federal law on the stay and the establishment of foreigners).

f) At the stage of the enforcement of return (e.g. if return was confirmed by the CRA), specific measures can be taken regarding deportation (accompaniment, financial aid, transport within the country, etc.) either by the canton (cf. consultations for return; in Geneva : bureau of assistance for repatriation/immigration of the Red Cross), or in agreement with the FOR.

q) is it consistent with the SGP?

Swiss practices are consistent insofar as they allow access the asylum procedures to unaccompanied minors, whatever their age.

As far as enforcement of the return of unaccompanied minors is concerned, the principles seem consistent with the SGP.

Nevertheless, it has been noted that the authorities' research to collect information in view of reuniting the unaccompanied minor with his or her parents, or to make sure he or she is granted an effective social environment is not always thorough enough (for instance parents are not precisely located, the health system is inappropriate to the unaccompanied minor’s condition).

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

Family and social environment conditions in the country should be more thoroughly and seriously checked.

Minors coming of age during the refugee status procedure

s) Describe applicable law, policies and practice

When minors reach majority (18), minority-related advantages no longer apply. Their applications are no longer given priority. Authorities will take into account that applicants are now eligible for return. It is presumed that, as adults, they can provide for themselves in their countries of origin (in some cases, because they were trained in Switzerland).

Nevertheless, the time the applicant spent in Switzerland is taken into account when a withdrawal of authorization is considered. In particular, the years od adolescence, considered crucial regarding integration, even more so when the unaccompanied minor went to school – will in principle permit him/her to get renewal of his temporary residence permit (his/her return will then be considered as a factor which would cause "severe personal distress", art. 44§3 LAsi; art. 33 OA1), or deliver a permit of residence on humanitarian grounds (art. 13f or 36 OLE, depending on whether the applicant has or does not have, a salaried activity).

However, according to art.44§3 LAsi and 33 OA1, there are two conditions permitting a temporary residence permit. On the one hand, no enforcement decision must have been made by the FOR within four years after the request for asylum. On the other hand, the factor of "severe personal distress" must be examined via the regular asylum procedure. In other words, the FOR will theoretically not deal with an applicant for asylum whose application was rejected and whose decision to deport from Switzerland was decided and has come into effect (either because there was no appeal, or because the decision was confirmed by the CRA).

t) is it consistent with the SGP?

Swiss practices seem consistent.

u) Should reforms be implemented to conform to the Statement of Good Practice?

No (Cf., 11u)

12. LONG-TERM SOLUTIONS

Installation in the host or asylum country

a) Describe applicable law, policies and practice

The MNA’s living situation is very different in each individual canton and cannot be generalised. Within the different cantons of Switzerland child-orientated care and accommodation is offered for children and young persons. There is also a large number of cantons which don’t have any specific accommodation to offer MNAs. These MNAs, like all other asylum-seekers are placed in communal accommodation. Summarily, to the collective accommodations (which house adults), one can add the following specific offers. These, however, will not be able to be offered to all MNAs:

Types of care for MNAs

Special sections in collective housing centres for MNAs
Family placement with Swiss people or people of the same ethnicity as the MNA
Accommodation with local children in facilities for social skills education
Receiving centres for clarification and targeted accommodation (registration centres)

Housing groups which will be lead by asylum-seeking adults of the same ethnicity (communal housing)
Intercultural housing groups
Specialised foster families

The residences look after the young persons in very different ways and with varying levels of intensity. Principally, care should not be limited to the provision of clothing and food, but also the mental state of the children and young persons should be stabilised. The facilities for children have two pedagogic tasks: they should make the integration of the children and young persons into local society possible while not foregoing the possibility of repatriation.

Therefore they should also keep up the cultural bonds the minors have to their native culture.

Also part of the care:

working out the trauma of fleeing, violent experiences and separation
the development of future plans which make integration as well as reintegration possible
imparting continuity and security within a clear frame of reference, as well as the introduction of Swiss culture, values and norms
the development and encouragement of practical, everyday skills
developing and realising career prospects
preserving the mother tongue and knowledge of the native culture
monitoring the fulfilment of educational obligations

How these various, and sometimes contradictory, goals of care-giving are best reached is controversial. In practice, MNAs are either in ethnically mixed or homogenised facilities, or are placed in integrated groups alongside Swiss children. Up until now, there has been no dominant consensus among experts on which types of care are better for MNAs. In mono-ethnic groups the preservation of the mother tongue and connection to the native culture is much easier, but there is always the danger that the children and young persons will be isolated and have little contact with Swiss children. Children which live in ethnically mixed groups, however, often have real communication and integration problems. In these groups the children often become outsiders.

It would be ideal if the type of care and housing for the MNAs suited each individual’s age and level of development, so that age-appropriate self-sufficiency, school attendance, and vocational training could be monitored and secured. These three things are the most important preconditions for successful integration and later repatriation of the refugees. For the most part, accommodation in collective, or communal, housing affects young persons over the age of 15. This type of accommodation is problematic in that practically no psycho-social care can be provided by the staff since the relationship between the staff and the children is not a close one. In addition, it isn’t suitable for MNAs to live with adult refugees whom they don’t know. The danger of sexual misconduct, especially concerning young girls, and the danger of becoming involved in criminal activities (especially for confused young persons) are very high when the children have contact with the aforementioned adults in communal accommodation.

Refugee Status

The unaccompanied minor who is granted asylum in Switzerland is entitled to a yearly residence permit (and to its renewal). Art.60 §1 LAsi. After five years, he/she is entitled to a permanent residence permit (art.60 §2 LAsi) with no time limitation (type C permit).

Temporary residence permit

According to case law (cf. ATF from Federal court N. vs. DFJP, 31 March 1994), a temporary residence permit (type F) can theoretically be converted into a yearly residence permit (type B) provided the (former) unaccompanied minor has spent at least 5 years in Switzerland, if he spent (even part of) his/her teenage years here, or if he/she went to school for at least two years in a primary or secondary school.

As a rule, permanent residence permits are granted foreigners who have spent 10 years in Switzerland with a renewable residence permit. (art.11 §5 ex. of the federal law on the stay and the establishment of foreigners)

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

The first three reasons listed under Point 12.1.1 as to why an MNA is allowed to stay in Switzerland have parallels in Swiss asylum law. The reason "explicitly for the benefit of the child" is not provided for in Swiss asylum law.

One reason for this is that important parts of the Convention on the Child dealing explicitly with refugee children in Switzerland were left out of the ratification bill from the UNO Convention on the Rights of the Child.

Problematic

The biggest problem for most MNAs living in Switzerland is uncertain residence status. This is especially so for the status concerning temporary admission. Temporary admission status does not allow a right to reside, but merely represents the postponement of deportation. It not only can be withdrawn by the authorities at anytime, but it also severely limits the refugee’s freedom of movement. Refugees with this status may not leave their individual canton, and depending on the canton, may not be allowed to leave a certain community in their canton.

The consequences of this uncertain residence status are as follows: the MNAs don’t have any short-term prospects; it is very difficult to find the motivation needed to attend school; as a rule, no vocational training will be able to commence or finish because possible employers do not want to get involved with this uncertain status. Moreover, these young people live in constant fear of deportation. This almost inevitably leads to the disorientation of the young person; it also sometimes leads to mental disturbances and deviant behaviour. These factors make a later repatriation and reintegration of the young persons in their home countries difficult. Both repatriation and reintegration would be much easier to manage with completed vocational training.

In the context of this situation, those experts with the job of caring for MNAs face a fundamental dilemma in their professional responsibilities. On one hand the children and young persons should be offered care which is focused on the child’s welfare, as well as encouragement and motivation to fulfil their educational obligations. On the other hand, they are required to repeatedly make the children aware that their stay in Switzerland is only temporary, and that at some undetermined time in the future they must leave Switzerland.

Swiss practices seem to be consistent.

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

No ( Cf. §12.b)

Family reunification in a host country

d) Describe applicable law, policies and practice

Cf. supra §9

The decision on whether an MNA receives asylum is made by the Federal Office for Refugees, with the possibility of appeal by the Asylum Appeal Committee. The concept of child welfare, as used by the UNO Convention, finds no particular application in the above decision. Plus, until now, no compulsory guidelines for the process of voluntary return have been laid down. The preparation and actual carrying out of such voluntary returns is left up to each of the responsible authorities.

e) Describe applicable law, policies and practice

f) is it consistent with the SGP?

In most cases, voluntary return is limited to those cases in which the MNA does not defend him/herself against the ordered deportation after the authorities have made it clear that he/she has no chance for a legal stay in Switzerland . It should be said that Point 12.2.1 of the SGP is very generally formulated. So formulated, Swiss practice, of course, corresponds to the SGP. The Swiss authorities also share the view that the best way to reunite families is through voluntary return. The accommodation and care of refugee families with children and MNAs should be fair in terms of the children. This principle must also apply to the asylum process; even when an MNA is going through the process alone. The decision on how a refuge-seeking MNA will be processed, including cases in which the MNA will not be recognised as a refugee, must also be judged according to this standard.

For cases in which return to the home country is not reasonable based on the conditions there, a stay (temporary or more permanent) in Switzerland will be the best solution. The status of these young persons should be sorted out in such a way that these youngsters will not be discriminated against in training programmes or in the job market.
In other cases, however, it will clearly be in the child’s best interest to return to his/her home country, especially when the MNA has been sent abroad, unaccompanied, by the parents or relatives. Children and young persons have the fundamental right to grow up within their families. But this right cannot be used just as an excuse to get rid of the children when it would mean sending them into unstable conditions with no protection.

An eventual return must also be for the benefit of the child. It’s not enough if the Swiss authorities either notify the Swiss Embassy in the child’s country of origin or hand them over to the border authorities without knowing how those returning will be released or supported. It must be proven that age-specific care will be provided.

g) should reforms be implemented to conform to the SGP practice?

Adoption

j) Describe applicable law, policies and practice

According to art. 264 ss of the Swiss Civil code, an unaccompanied minor may in theory be adopted if the adopter is beyond 35 years of age, if there is at least a 16-year difference between them and only if the adopted gave his/her consent (when he/she has discernment). Moreover, the parents' consent is required. Nevertheless, the consent of a parent may be unnecessary if the parent is unknown, reported missing with no address, or is durably incapable of discernment.

Adoption of an unaccompanied minor is seldom, in Switzerland since authorities don't want laws on asylum procedures to be bypassed through this means. Moreover, consent of the biological parent can not be presumed, since he/she might be difficult to find in the country of origin.

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

Swiss practices seem to be consistent.

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

Identity and nationality

m) Describe applicable law, policies and practice

The question of statelessness is addressed in particular in the federal decree of 27 April 1972 which approved the Convention on the status of stateless persons. The FOR determines stateless status.
According to the federal law of 29 September 1952 on the acquisition and loss of Swiss nationality, a person who has been living legally in Switzerland for 12 years can apply for national status. In the calculation of the 12 years of residence of the applicant, the time spent in Switzerland between the ages of ten and twenty counts double. (art.15 §1-2 LN)

Besides, because of the Swiss federalist system, Swiss nationality is granted by naturalisation in a canton or a city. It is not valid if federal approval is not granted. Because of this, practices differ depending on cantons and communities. (In some cities, the decision to grant national status is taken directly by the population, who usually knows little of the case, and whose opinion naturally varies on the subject. Such a procedure can lead to discrimination and to arbitrary decisions)

n) is it consistent with the SGP?

Swiss practices seem to be consistent. Nevertheless it would be advisable that the decision to grant national status be systematically taken by administrative authorities.

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

Cf. supra §12n

Deportation leads to the cancellation of the alien’s residence permit; it also obliges him or her to leave the country. If this duty is not fulfilled, the alien will be more forcibly deported. This deportation will be threatened in writing. In this form, a deadline to leave the country will be given and the state will indicate where he/she must go. This threat can also be carried out when obstacles to leaving the country or reasons for the tolerance of the MNA are known.

The deportation of MNAs occurs frequently in Switzerland . It is also known that before the deportation, the Swiss authorities don’t adequately clarify whether the MNAs can be taken in by their families or relatives, or whether the provision of care is possible by either the state or a charitable institution. Frequently, the only thing that will be clarified is if the border authorities of the receiving country will allow the children and young persons to re-enter. If they are allowed to re-enter, it is trusted that the foreign authorities will take care of the children and young persons.

It should be noted that, in practice, it is often so difficult to arrange the deportation of MNAs that the foreign authorities simply wait until the refugee has come of age so that he/she will be able to be deported with comparatively minor effort.

Family reunification and return to country of origin
Voluntary return

p) Describe applicable law, policies and practice

Cf. § 11p (e) for law applicable to return.

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

In the deportation of an MNA, it is not always proven that the child won’t be threatened by danger during the return home. There will also be children which are deported against the will of their legal advisers. No careful assessment of the safety of the MNA or of the family situation in the home country takes place. Often the parents or other care-givers will not be informed of their child’s forthcoming return. As a rule, they will also not be obliged to deal with the arrival of the child, or with the child’s long-term care and welfare. Generally there will be neither an appointed escort during the deportation nor an effective supervision of the child conducted by an international organisation after the child’s return.

In particular, the collaboration of the Swiss authorities with international organisations, which are able to provide clarifying support to the intake services of the receiving country, and with the authorities and facilities in the receiving country has long been unsatisfactory. A regular intervention by International Social Services could help find relatives who could take the MNA in, or identify either public or private facilities which could make care possible.

It is problematic to continue the use of imprisonment of MNAs for the purposes of preparing and securing deportation. In the opinion of the UNHCR, regularly imprisoning MNAs goes against the spirit of Art. 37 of the UN Convention on the Rights of the Child. Art. 37 states that imprisonment may only be used as a last resort and only for the shortest amount of time possible. In the event of imprisonment, the age-related needs of the child must be taken into account.

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

Preliminary conditions to return

s) Describe applicable law, policies and practice

t) is it consistent with SGP?

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

In general, no repatriation of an MNA should be carried out without the following having first been clarified: the reception and the care of the child is secured; the circumstances are for the benefit of the child. The Federal Agency for Refugees must change its practice accordingly. The most sensible way to do this would be to waive the applicable administrative guidelines. Within these guidelines, the following aspects should be clearly laid down above all else:

The child and the young person must be informed of all steps so that the necessary advice and support can be obtained according to Art. 12 of the UN Convention on the Rights of the Child. Afterwards, the child’s opinion on all his/her concerns shall be taken into account.
The Federal Office for Refugees shall commission International Social Services to carry out a clarification on the spot of reception possibilities; when such a reception is possible; how to prepare it. A suitable care-giver in the country of origin, that is, a parent, another relative, a reliable person the child can closely relate to, a placement within state facilities, or a child-minding facility, must actually be in a position to take responsibility for the child and to protect and care for that child in a way that is to the child’s benefit.
The child and the young person must receive an adequate consultation before their return; especially when there is reluctance on the part of the child or pressure from the family working against the return.
The child and the young person must be appropriately accompanied during the return.

In principle, the regulations from the UN Convention on the Child are to be observed. Imprisoning the child shall only be done as a last resort and for the shortest time necessary. For children under 16 years of age, this must be abstained from for safety. In the event of imprisonment, the MNA must be cared and provided for in an age-appropriate manner, receive psychological care, have an interpreter appointed, and be accommodated separately from adults. Basically, the authorities should try to bring about a voluntary return instead of a deportation. If the latter, than it shall be made clear that a fair and just reception will be given in the country of origin.

It would be ideal if those dealing with the search gave the authorities a clear indication of how the search should be conducted, when information would be at their disposal, and what contribution NGOs (above all) would be able to make. Above all, it would be best to sensitise the authorities to the problems that could result from the search for relatives which remained behind in the country of origin.

Provisional care (SGP: C10.1)

The goal of the process must be the ability to reach a legally binding decision on the whereabouts of the MNA. Should the MNA be sent back, it must be settled without a doubt that the child will receive an appropriate reception and care in the receiving country. If these conditions cannot be guaranteed, then the child or young person will be accommodated and supported, according to age, during their stay in Switzerland.

The following aspects are to be newly resolved according to the demands of the SGP:

Arrangement of guardianship (ZGB Art. 368) or assistance (ZGB Art. 392), which are based on child welfare

MNAs have the right to assistance or a guardian. 16 to 18 year old refugees must also receive assistance or a guardian.

The carrying out of an age-determined process which is fair and just to children (SGP C: 5)

If a reasonable doubt as to the age given by the MNA occurs, a determination of age is demanded as a matter of fact. This process must be carried out by qualified professionals such as paediatricians or child psychologists. The age determination must be done without force and non-invasively; it must consider physical and mental maturity. In cases of doubt, the decision shall be in favour of the minor.

Identification of the MNA as well as an immediate and careful search for relatives (SGP: C 8)

When an accompanied refugee minor enters the country, the authorities should make sure that the accompanying adults are really the custodians in order to avoid children and young persons being exploited by criminal smugglers.

Basically the search for the parents and relatives of the MNAs must begin immediately after the MNAs’ registration with the police. This search, in which appropriate NGOs have joined, must not endanger the safety of the MNA after their eventual return, nor that of their relatives living in the country of origin. The children and young persons will have to be informed of every step taken and have the right, should the situation arise, to contact their relatives.

Repatriations only when they are in the child’s best interest ( SGP: C 12)

MNAs may not be turned away, sent back or deported when their parents or legal guardians live in Switzerland . In general, no repatriation should take place without it previously having been clarified that the reception and care of the child or young person are secure and that those circumstances are in the best interest of the child.

The skills corresponding to educational and vocational training (SGP: C 3)

Children and young persons shall have the right to education within the realm of their abilities and inclinations, regardless of their refugee status. As long as young people are going through the asylum process, they should not experience a limitation in the job market, but be employed like the rest of the young persons in Switzerland . Learning is a human right and education is the most efficient form of developmental help. The date of leaving the country shall be set for after the completion of vocational training when a resumption or continuation of that training is not possible in the receiving country.

Residence status (SGP: C 12)

Children and young persons who cannot be returned to their home country by Swiss officials for practical or humanitarian reasons shall be given temporary right to residence in the form of a residence permit. This shall make the completion of school, professional training, or at the very least, the arrangement of professional knowledge in the form of manual skills, possible.

Integration (SGP: 12.1.3)

The careful care and integration of MNAs are very important for coping with the here and now, and for a good preparation for social and professional prospects. This is especially true when the reintegration of the young person is to be contemplated.

The registration of the child and young person shall be carried out by a qualified team with a background in social work and ethnology in order to both record the developmental and social needs of the child, and to be able to draw up a plan for care and support. Most important is a frame of reference including trustworthy people who can build reliable relationships with the child or young person.

Voluntary Return / Reuniting the family (SGP: 12.2.1)

In all cases in which the MNA will not be granted a more permanent stay in Switzerland , it is important to explain to the children and young persons, on a child’s level and according to age, why this isn’t possible. It is also important to provide the child, during preparation for the return, with the necessary psychological and practical help. It should always be remembered that there are MNAs who have been sent out of their countries, by parents with high expectations and who are suffering materially, in order to contribute to the up keep of those who remained behind. There is often an enormous pressure on these children not to let these expectations go unfulfilled; though this will undoubtedly be the case upon return. This is the area in which the authorities and appropriately qualified staff can and must provide support during preparation for the return.

Requirements for the MNA’s return with safety and dignity

Search for familial relations and contacts

Provisional care (SGP: C 10.1)

The following aspects are to be newly resolved according to the demands of the SGP:

Arrangement of guardianship (ZGB Art. 368.) or assistance (ZGB Art- 392), which are based on child welfare

MNAs have the right to assistance or a guardian. 16 to 18 year old refugees must also receive assistance or a guardian.

The carrying out of an age-determined process which is fair and just to children (SGP C: 5)

Identification of the MNA as well as an immediate and careful search for relatives (SGP: C 8)

Repatriations only when they are in the child’s best interest (see SGP: C 12)

The skills corresponding to educational and vocational training (SGP: C 3)

Residence status (SGP: C 12)

Integration (SGP: 12.1.3)

Voluntary Return / Reuniting the family (SGP: 12.2.1)

Reintegration programmes and help

v) Describe applicable law, policies and practice

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

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

Settlement in a third country

y) Describe applicable law, policies and practice

As a rule, applicable legislation depends exclusively on the third country.

z) is it consistent with the SGP?

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

13. DATA COLLECTION

a) Who is responsible for collecting data on separated minors seeking asylum? Indicate both state agencies and NGOs

b) What kind of data is asked from state agencies? From NGOs?

c) Give recent data on separated minors seeking asylum from state agencies and NGO sources.

14. INTERNATIONAL INSTRUMENTS

14.1 Refugees

Convention relating to the Status of Refugees, 1951

Protocol relating to the Status of Refugees, 1967

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (§ 213-216)

UNHCR Note on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, 1997

14.2 International instruments for the protection of Human Rights

Universal Declaration of Human Rights, 1948

International Covenant on Economic, Social and Cultural Rights, 1966

International Covenant on Civil and Political Rights, 1966

Convention on the Reduction of Statelessness, 1961

Geneva Protocol No. 1 Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts

Geneva Protocol No. 2 Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts

UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (art.3)

Convention on the Elimination of All Forms of Racial Discrimination, 1965

14.3 Children – International and regional instruments

Convention on the Rights of the Child, 1989

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985

United Nations Standard Minimum Rules for the Protection of Juveniles Deprived of their Liberty, 1990

European Convention on the Repatriation of Minors, 1979

European Convention on the Exercise of Children’s Rights, 1996

Hague Conference on private international law

Convention concerning the powers of authorities and the law applicable in respect of the protection of minors, 1961

Convention on the Civil Aspects of International Child Abduction, 1980

Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, 1993

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, 1996 (still not in force)

European Union

Joint action of 24 February 1997 concerning action to combat trafficking in human beings and sexual exploitation of children

Council resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries

14.4 Europe

European Convention for the protection of Human Rights and Fundamental Freedom (and its Protocols), 1950

Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (Dublin Convention), 1990

Schengen Convention, 1990

European Union

Joint position of 4 March 1996 on the harmonized application of the definition of the term ' refugee' in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees

Resolution on minimum guarantees for asylum procedures, June 1995

Resolution on manifestly unfounded asylum applications, 1992

Resolution on a harmonized approach to questions concerning host third countries, 1992

Conclusions on countries in which there is generally no serious risk of persecution, 1992

Resolution on the harmonization of national policies on family reunification, June 1993

Council of Europe

European Social Charter

Geneva, finalized 09.06.2000/ih