“VOLUNTARY” RETURNS TO ERITREA, BY ANNELIES MUELLER VEREIN GIVE A HAND.CH

For PDF Version see here: voluntary returns to eritrea_Swiss policy

OCTOBER 2021

Table of contents                                                                                

Introduction……………………………………………………………………………………………………………………….. 2

1. The Swiss asylum procedure……………………………………………………………………………………………. 2

Offices involved ………………………………………………………………………………………………………………. 2

Procedure …………………………………………………………………………………………………………………….. 2

Problems………………………………………………………………………………………………………………………… 3

2. Criterias applied when treating asylum claims ……………………………………………………………………. 3

3. Law enforcements against Eritrean asylum seekers …………………………………………………………….. 4

List of law enforcements ………………………………………………………………………………………………….. 4

4. Results …………………………………………………………………………………………………………………………… 5

5. Further problems…………………………………………………………………………………………………………….. 5

Introduction

In Paragraph 18 of the latest UK home Office Report on the Situation in Eritrea, published in September

2021, there is a disturbing allusion referring to the possibility of “voluntary returns”. This possibility is brought  into  the  discussion  after  the  dire  human  rights’  situation  in  the  EMNS  and  the  problems returnees  had  faced  after  being  forcibly  repatriated  to  the  country  were  extensively  evaluated.  It almost appears as if the last passage would lacks a logical connection with the rest of the report – as if it had been included at a latter stage of writing and after a hint from somewhere or somebody.

To us who have been accompanying Eritrean refugees in Switzerland for the past six to seven years, the allusion to “voluntary returns” automatically rings all the alarm bells. This (rather hypothetical) possibility which in practice is taken advantage of only by a small number of Eritreans (most of them elderly  individuals  previously  sympathetic  with  the  government  or  people  suffering  from  severe psychological or even psychiatric issues) has nevertheless decided on the fate of hundreds of asylum seekers searching refuge from the dictatorship in Asmara.

In this paper, I’d like to outline the most important developments in Switzerland resulting in an almost complete  turn-down  of  Eritrean  applicants  and  hundreds  of  affected  people  stranded  either  in clandestine conditions in the  neighbouring countries (including Great Britain) or in a legal limbo  in Switzerland.

1. The Swiss asylum procedure

The Swiss asylum procedure has undergone a reform coming into effect on 1st of March 2019. As most of the cases I am going to refer to, however, have been treated under the old system, I will briefly mention its procedures, its actors and its main problems.

Offices involved

1. The State Secretariat for Migration (SEM): Is responsible for the treatment and evaluation of

the asylum cases, issues country policies and asylum decisions.

1. The Federal Administrative Court (FAC): treats appeals lodged by asylum seekers and their legal representatives against negative asylum decisions; court of last appeal!
2. The Cantonal Migration Offices: Are responsible to house and finance the refugees during the procedures; are also responsible to execute expulsion decisions issued by the SEM.

Procedure

1. Arrival at the border after illegal entry (or at the airport after legal entry), transfer to one of the four reception centers;

2. Shortly after  arrival:  Brief  interrogation  on  personal  data,  family  ties,  documents,  journey, health  and  –  if  time  was  available  –  a  few  questions on  the  respective  country  and  on  the reasons why asylum is claimed;
3. Many months (or even one  or two  years)  later:  A profound  interview  in which the asylum claims and the flight from the home country are discussed. Cross-questionning is a frequent mean of checking and counter-checking.
4. A few months later: An asylum decision is issued by the SEM; 30 days for appeal.
5. (in case  of  appeal):  Appeal  is  briefly  checked  by  the  instruction  judge;  when  prospects  to succeed are given, free charge is granted;
6. Many months (or years) later: The case is decided by three judges. A verdict is issued.

Problems

  Interrogation situation: Small rooms, long interview durations, cross-questionning, etc.

  Credibility (character of applicant, years at school, trauma, sexual violence not mentionned because of tabu or trauma, etc.).

  no legal representatives unless an appeal is lodged against the negative asylum decision

  Rumours  within  the  community  and  purposely  distributed  false  information  from  pro- government agents;

  Manipulative behaviour of interpreters during interviews.

2. Criterias applied when treating asylum claims

The individual asylum claims are treated based on the claims the applicant made during the interviews.

The person who evaluates the claims is not the one who had previously questionned the applicant. The following criteria are applied when issuing an asylum decision:

1. Credibility: The claims are checked on their plausibility and on the country knowledge acquired by the  country  experts  at  the  SEM.  Contradictions,  illogical  or  unreasonable  behaviour  or claims and off course forged evidence obviously minimize the chances of being granted asylum.
2. Right to asylum: If a person manages to illustrate that he or she had been persecuted by state actors (or that state actors are not willing or able to protect him or her) from e/g persecution by family members, if the persecution is intense enough to create an “unendurable physical or psychological pressure on the applicant” and if there is no internal flight alternative (inside the home country) available, the person is attributed the refugee quality as well as the right to asylum (permanent stay).
3. post-flight reasons:  If  a  person’s  behaviour  while  or  after  fleeing  the  country  amounts  to persecution by State actors after his or her return, the applicant is granted temporary refugee status, but no asylum (e/g until 2016, the illegal exit from Eritrea was sufficient to justify a temporary refugee status).
4. Temporary admission  for  humanitarian  reasons:  If  an  applicant’s  claims  neither  meet  the criteria  to  obtain  asylum  nor  to  grant  a  refugee  status,  two  aspects  need  to  be  evaluated before a decision to expel a person maybe issued:
5. Admissability of return: If the expulsion violates  international law (e/g the  ECHR, the CAT, CEDAW or Child’s convention), the return is not admissible.
6. Unreasonability of return: If there is a general situation of violence, a civil war or generally dire situation existing in the home country, the expulsion becomes unreasonable; the same is the case  if  a  person’s  health  is  seriously  endangered  after  return  or  if  no  socio-economic network is available in order to help the applicant with his or her re-integration (Art. 83 §4

Asylum law: “If a person faces to be pushed into an existentially threatening situation of poverty after return).

3. Law enforcements against Eritrean asylum seekers

Since 2010, Eritrean asylum seekers have increasingly become a target of xenophobic political attacks;

this can be observed in the media as well as in parliamentary discussions or legal changes  directly attempting to stem the influx of Eritrean asylum seekers into Switzerland.

In 2015 and 2016, the negative media campaign, mainly driven by right-wing politicians in collaboration with  Eritrean  pro-government  agents  establishing  themselves  as  “experts”  on  this  “problematic” community, reached a peak. In February 2016, a group of 5 Swiss parliamentarians went on a journey to  Eritrea,  organised  by  Honorary  Consul  Toni  Locher,  a  notorious  pro-government  agent  of  Swiss origin. The parliamentarian’s conclusions could later be  found in all media: “We were able to walk around in Asmara and enjoy our Espresso without being harassed by anybody. The UN’s claims must be completely exaggerated.”

At the same time, a so-called “Fact Finding Mission” consisting of 2 experts from the SEM and one of the  BAMF,  travelled  to  Asmara.  They  were  able  to  hold  several  talks  organised with  different representatives (the usual round-tripping), and they issued a report shortly afterwards.

Based on this report, the SEM organised a Press conference on June 23nd, providing details on the above-mentioned report. A consequence was that the illegal exit as a sole asylum claim would no longer justify a temporary refugee status.

Important to bear in Mind!: The press conference was held on the very same day when thousands of Eritreans gathered in Geneva in order to utter their approval with the UN report. Whereas their demonstration wasn’t mentioned in a single line, the law enforcement was broadly perceived and discussed in each Swiss newspaper.

List of law enforcements

  2012:  as  an  addition  to  Art.  3  Asylum  law,  §2  explicitly  excludes  desertion  from  military

service as an asylum claim; this, however, didn’t prove to be sufficient to turn down Eritrean asylum claims as the conditions in EMNS were generally perceived as inhumane and degrading (violating Art. 3 ECHR) and amounting to slavery or forced labour (in violation of Art. 4 ECHR).

  Sept 2013: As a result of a reform of the Asylum law, the possibility to ask for asylum at a Swiss embassy  abroad  was  abolished;  family  reunion  was  reduced  to  spouses  and  under-age children.

  June 2016: The SEM issues a statement saying that illegal exit would no longer justify a post- flight reason (previously resulting in temporary refugee status).

  30. Jan 2017: 1. Landmark decision on Eritrea (D-7898/2015): The FAC approves the SEM’s interpretation on illegal exit.

  17. Aug 2017: 2. Landmark decision (D-2311/216): The FAC undertakes the task of doing an updated assessment on the general situation in Eritrea; it comes to the conclusion that the general  situation  does  no  longer  justify  that  expulsion  to  Eritrea  (as  long  as  it  happens voluntarily) should be considered unreasonable.

  Second half of 2017: An increasing amount of negative asylum decisions emerged in which, respective to a decision issued by the European Court for Human Rights, the SEM stated that the mere probability that an applicant could be conscripted into the EMNS after his/her return was not sufficient to justify a violation of Art. 3 and 4 ECHR. To justify the inadmissibility of return, the fear of persecution must be proven so that “a real risk” would be given.

  10. Jul 2018: 3. landmark verdict, E-5022/2017: The FAC examines whether conditions in EMNS do violate Art. 3 and 4 ECHR. It reaches the conclusion that the treatment of conscripts is indeed harsh and problematic, but there were no indications that the ill-treatment was wide- spread (systematic) and flagrant enough to justify a general violation of Art. 3 and 4 ECHR. This would be the case as long as the rejected applicants would fulfil their duty by settling their relationship with the Eritrean government.

  2019-2020:  Based  on  the  2.  Landmark  verdict,  the  SEM  announces  that  3’200  temporary admissions  for  humanitarian  reasons  on  Eritreans  would  be  re-evaluated.  In  sheer  panic, several dozens of Eritreans fled to neighbouring countries. According to the SEM, “only” 9% of all evaluated cases were affected and the temporary admissions were withdrawn.

4. Results

These three landmark verdicts resulted in an almost systematic turn-down of Eritrean asylum claims as  long  as  no  solid  evidence  could  be  produced  that  the  person  had  evaded  EMNS  or  even  fled detention.

A very cynical contradiction is that Swiss authorities do still acknowledge the evasion from military or National Service as a reason to grant asylum, but they would not hesitate to send rejected asylum seekers back into these very same conditions.

The EASO-report issued by the SEM which was published in Sept 2019 claims that the diaspora status which is achieved by settling the relationship through paying the 2% tax, signing the repentance letter and by giving detailled information on the whereabouts of all the family members would last no longer than 6 to 12 months after return. Thereafter, the returnees would face the same treatment as Eritreans who had stayed in the home country.

5. Further problems
6. No Monitoring:  No  monitoring  of  returnees  is  done  by  the  SEM.  There  are  no  reliable

information on what happens to Eritreans who voluntarily returned home.

2. Data exchange: The cantonal migration offices routinely Exchange data from rejected asylum seekers with the Eritrean consulate in Geneva. By doing so, the cantonal migration offices hope to later obtain travel documents from the consulate once a treaty on forcible returns has been negotiated.

For further information, please contact the author. Annelies Müller

Verein Give a Hand.ch Sandstrasse 5, Erdgeschoss CH-3302 Moosseedorf/BE Tel.: +41 (0)31 850 10 94

Mob.: +41 (0)79 830 57 63 This email address is being protected from spambots. You need JavaScript enabled to view it. www.giveahand.ch