At a time when asylum applications are falling worldwide, the Swiss government is seeking to raise the obstacles faced by people seeking a country of safe refuge from persecution at home. By rendering access to this landlocked country more difficult, Switzerland is failing not only those fleeing persecution and mortal danger, but is also shifting the burden of their initial reception to its Mediterranean neighbours on the periphery of the European Union.
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On September 24, Swiss citizens will vote in a referendum on the amendments to the Law on Asylum. In brief, these will deny access to asylum procedures for asylum seekers who do not produce valid travel and identification documents upon arrival, or who do not submit their applications in time.
Last December’s modifications to the national asylum law represent a dramatic retreat from the international standards Switzerland accepted when it ratified the Refugee Convention. We are calling on Swiss citizens to consider the following basic principles of refugee protection, due process and fundamental fairness when they vote on the referendum on the Law on Asylum (LAsi).
- Access to asylum procedures is a basic human right regardless of the asylum seeker’s legal status. The amendment to the Law on Asylum would bar from the asylum procedure persons declared “non-entrée en matière.” This is contrary to the Universal Declaration of Human Rights, which upholds as fundamental the right of everyone to seek and enjoy asylum from persecution. International refugee law recognizes that people fleeing persecution are often unable to obtain permission to leave the country where they are being persecuted or to enter another. Those arriving at the Swiss borders with only the bare minimum of possessions, having left their homes and livelihoods, and often their families and identity papers behind in their flight from persecution, have a right to have their case heard whether they are in possession of proper travel documents or not. Recognition of this right is enshrined in article 31 of the Refugee Convention, which states that “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened,…enter or are present in their territory without authorisation.”
- Denying access to asylum procedures could result in refoulement, the forced return of a person to persecution, a violation of international law. The amendments to the Law on Asylum denying access to asylum procedures by reason of “non-entrée en matière” would violate Switzerland’s international obligations if the merits of refugees’ claims are not considered and they are returned to persecution or torture. In order to avoid this eventuality, Switzerland must ensure that all asylum claimants get a fair hearing, regardless of the manner in which they entered the country.
- Asylum seekers should not be denied access to procedures by reason of arbitrary and unreasonable procedural requirements. The Law on Asylum as amended requires that an asylum seeker produce his or her identity or travel documents within 48 hours, unless they can produce a plausible reason. People seeking refuge in Switzerland, however, do not necessarily speak a Swiss language, have access to information about asylum procedures immediately on arrival, or the ability to obtain the required documents from distant home countries within 48 hours of arrival. They may also be confused or traumatised. Switzerland is entitled to exclude those without a valid claim to asylum, but the only proper way to determine such claims is through fair procedures for refugee status determination based on careful, in-depth appraisal of the applicant’s claim. Such an essential and thorough fact-finding procedure should not be short-circuited because the claimant cannot produce valid identity or travel documents within two days of arrival.
- A meaningful right of appeal is an integral part of due process in any full and fair asylum procedure. The amendment to the Law on Asylum requires that appeals be filed within five days of the first-instance denial of an asylum claim. The right to challenge an administrative decision in the courts is fundamental for all people, citizens or not, in any democratic society. To reduce the time frame for lodging such an appeal to five days is impracticable and unreasonable for asylum-seekers unfamiliar with Swiss legal procedures. As such, it constitutes an arbitrary infringement on the right of appeal, which should be exercised within a reasonable time.
- Confidentiality during the asylum procedure is fundamental both to the security of the applicant and to the integrity of the procedure. The Law on Asylum as amended allows for agreements with other states to help establish individual motives for flight. Contact with third-country governments could undermine the asylum procedure because of the risk that information about the asylum claimant would be discovered by the home government. The prospect of such information sharing could itself destroy the trust of the applicant, which is necessary in order for him or her to express and explain his or her fear of persecution. It could also, of course, alert those home authorities that their citizen is launching an asylum claim abroad, which could make them more likely to persecute that person upon return. In the case of successful asylum seekers, it could result in official retribution against their relatives or associates who remain at home.
- Equitable sharing of the refugee burden is fundamental to the global refugee regime. The amended Law on Asylum interprets the phrase “coming directly from a territory where their life or freedom was threatened” (Refugee Convention, article 31), too narrowly by denying admission to asylum-seekers transiting—even briefly— through third countries. Article 31 is generally interpreted to prohibit penalization of persons who briefly transited third countries, who could not find effective protection in such countries, or who have other good cause for illegal entry. This amended law lacks generosity toward those desperately seeking safety, and it fails in equal measure to provide back-up for states that are geographically the first port of call for many asylum seekers. Today, small island states like Malta and Cyprus on Europe’s periphery receive a disproportionate number of asylum requests, more than their asylum procedures can accommodate. The amended Law on Asylum denies Switzerland’s tradition of generosity by refusing entry to these claimants as well as its dependability as a member of the international community to bear its fair share of the refugee burden.
- Asylum seekers should not be deterred from their right to seek asylum through infringement of basic social and economic rights. The Law on Asylum as it now stands denies social assistance in terms of food, shelter, education and healthcare to applicants appealing against first-instance rejection of asylum claims. This is presumably to dissuade them from pursuing the right of appeal to which they are entitled. Moreover, adopting measures that will affect the very survival of those deemed to have failed at the first hurdle, while their appeal is still being heard, contributes to the social exclusion of particular groups, with all its attendant risks of alienation.
- Denying access to asylum procedures could result in refoulement, the forced return of a person to persecution, a violation of international law. The amendments to the Law on Asylum denying access to asylum procedures by reason of “non-entrée en matière” would violate Switzerland’s international obligations if the merits of refugees’ claims are not considered and they are returned to persecution or torture. In order to avoid this eventuality, Switzerland must ensure that all asylum claimants get a fair hearing, regardless of the manner in which they entered the country.
