Swiss Administrative Court: Judgment of 2 October, D-2797/2010

Friday, October 4, 2013

The asylum seeker is a young man from Libya who had arrived in Malta in 2010 with a Maltese Schengen visa. He only spent one day in Malta and then took a plane to Switzerland, where he asked for asylum. The Swiss Federal Office for Migration (FOM, first instance asylum authority) asked Malta to take him back (based on art. 9.2 Dublin Regulation), to which the Maltese authorities agreed. The FOM took a negative Dublin decision with the intention of transferring the asylum seeker to Malta. The asylum seeker appealed the decision through a legal representative, asking for application of the sovereignty clause due to the problematic reception conditions in Malta. The Court cites several reports by different NGOs, Council of Europe, UNHCR etc. regarding the problematic detention and reception situation in Malta. The Court criticizes the first instance authority for citing these reports in a one-sided way and stating conclusions that are clearly the opposite of what the cited sources actually say. The reports describe the systematic detention of asylum seekers, insufficient conditions in the big Open Centres and that it is not guaranteed that vulnerable persons will actually be accommodated there, according to their needs. Furthermore, in July 2010 a group of Somali persons had been sent back to Libya where they suffered torture. During 2011 there was a large increase in asylum applications in Malta. In light of this information regarding the situation of asylum seekers in Malta, the Court concludes that the presumption that Malta respects the fundamental rights of asylum seekers according to the CEAS in an appropriate manner can no longer be upheld. This does not mean that the mentioned deficiencies in Malta generally lead to the danger of inhuman or degrading treatment. But it must be examined in the individual case «whether the person in question belongs to a category of persons who due to their specific vulnerability would risk a violation of their fundamental rights in case of a transfer to Malta because of the deficiencies in the asylum procedure and the reception conditions». Regarding the Libyan asylum seeker in the concrete case the Court only states that he did not enter Malta illegally because of his visa, so he would not risk detention. He also does not belong to a vulnerable category. Therefore there are no obstacles to his transfer drawn from the reception conditions.

However, the asylum seeker would risk refoulement to Libya in case of a transfer to Malta, because the Maltese authorities had clearly stated their intention to return the person back to Libya after the expiration of his visa. Also, there had been cases of refoulement from Malta to Libya in the past. Therefore, the Court orders the FOM to apply the sovereignty clause and examine the asylum claim on the merits in Switzerland.

For the full text of the judgment (available in German) please visit: Swiss Administrative Court: Judgment D-2797/2010

The Weekly Legal Update wishes to thank ELENA Coordinator Switzerland, Ms. Seraina Nufer, for kindly translating and summarizing in English the judgment above.

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



Individual assessment
Dublin Transfer
Reception conditions
Vulnerable person