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International law Tale of Swiss-based Syrian torture survivor highlights Dublin flaws

Jalal from the back

Jalal did not want to have his identity disclosed out of security concerns for relatives who are still in Syria.

(swissinfo.ch)

Jalal last saw his youngest son was when the boy was a baby. Now Hamude is almost five. The asylum seeker from Syria is caught up in a complicated international case based on the Dublin accord, a regulation that Switzerland applies more strictly than any other country in Europe, according to critics. 

Jalal has been living in limbo, unable to plan more than a few months in advance, since 2014.

“I spent five years in a Syrian prison and now I have spent [almost] another five years in an open prison,” Jalal told swissinfo.ch in November.  

The father leads an isolated life in a tiny studio on the outskirts of Lucerne in central Switzerland.

Hamude, along with his mother and two siblings, live equally isolated in a rundown caravan camp a couple thousand kilometres away in Greece. Their relationship unfolds largely over Whatsapp. Living with no sense of when or where they will all see each other again has both parents on the edge of a nervous breakdown.

family

Jalal's family lives in a camp near the Greek port city of Thessaloniki. 

(swissinfo.ch)

Despite the efforts of lawyers in both countries, the family has been unable to reunite, victims of a Dublin accord that member states including Switzerland prefer to invoke to expel people rather than evaluate their cases. Under the regulation, Switzerland can automatically deport individuals to the first country of arrival in the Schengen area. As a Kurd, who says he suffered torture and prolonged detention in Syria as well as a dangerous war wound, Jalal’s asylum claim warrants evaluation.

But Jalal faced a classic problem — one confronting asylum-seekers in Switzerland and across Europe. The only aspect of his journey the Swiss authorities cared about at the time of his arrival was through which country he entered Europe’s open borders Schengen area, not why he was seeking asylum. On that basis, the decision to expel him to Italy was made in early 2015.

“Switzerland has never lived through a war, so the Swiss are not able to empathize with people who are fleeing a war,” concluded Jalal in a moment of deep uncertainty about his future. “If they had any sense of what we have been through they would not deal with us like this.” 

Switzerland prides itself on its strong humanitarian tradition but policies relating to asylum and migration have hardened in recent years as elsewhere in Europe. The Swiss Secretariat for Migration (SEM) declined to comment, saying it does not provide details on individual cases for “data protection” reasons. 

Swiss policy

Switzerland, the founding country of the Red Cross, is renowned for its humanitarian tradition. But its asylum policy has become increasingly restrictive over the past decade. Right-wing parties, particularly the anti-migrant Swiss People’s Party, have been particularly active in this area. The people confirmed this trend by agreeing in 2016 to tighten reception conditions for asylum seekers and speed up application procedures. The accelerated asylum proceedings will come into force in March next year. Since 2015, the State Secretariat for Migration (SEM) has also been stricter in examining asylum applications, particularly with Eritrean applicants. This hardening, supported by parliament, has been fought by organisations representing migrants.

end of infobox

A Syrian nightmare

Back in Syria, in 2004, Jalal says he found himself on the wanted list of the Syrian regime for participating in a protest demanding greater rights for the Kurdish minority population. He and his father were targeted in a knife attack by pro-regime thugs three years later, in 2007. Jalal incurred 12 cuts while his father was killed on the spot.

According to his story, Kurdish rights activism landed him behind bars. He was held in a prison in the northern city of Aleppo where one of the many grisly tasks assigned to him was cleaning the basement room used for executions — punishment for dodging military service. He was still behind bars as a popular revolt against Syrian President Bashar al-Assad gave way to large scale massacres and war.

He says he eventually managed to escape during a rebel attack on the prison, seized the opportunity to flee to Turkey and had to return to Syria to borrow money to pay smugglers to get his family to Europe. On that journey, he sustained a grenade injury. Neither surgeons at the field clinic that treated him that day nor those later in Switzerland were able to extract all of the fragments.

Getting to Europe

Badly wounded, he boarded a naval ship from the Turkish coastal town of Mersin and travelled with hundreds of others to Italy. Time in Italy was brief but long enough for the authorities to take his fingerprints — an act that would underpin the Swiss decision to send him back.

“The Italian authorities put us on buses and took us straight to the train station in Milan, so we could continue to Europe,” says Jalal, who picked Switzerland over Germany because his two brothers were already living in the Alpine nation.  “A return to Italy would mean starting from scratch and god knows how many years until I see my wife and children.”

In Switzerland, he now gets by on emergency aid and found accommodation — a spartan but clean studio — through the Caritas charity. Every two weeks he must report to the local migration authorities. The one thing he is deeply grateful for is the medical and psychological treatment he has received here.

Navigating Swiss and international laws

Gabriella Tau and Boris Wijkström are his lawyers at the Centre suisse pour la défense des droits de migrants (CSDM), an organisation focused on defending the rights of migrants. CSDM took up his case and brought it to the attention the Committee Against Torture (CAT) at the United Nations, which suspended his expulsion pending a ruling on the merits of the case.

During an October interview in his small office in Geneva, where dozens wait in the stairway in the hope of getting legal assistance, Wijkström said they are “very careful” of which cases they defend. The lawyers only take up a few per year, selecting the ones where they feel there has been a real miscarriage of justice.

“They are very sensitive to any possible limitations imposed on Dublin expulsions to Italy,” he said about the Swiss position on asylum cases that have reached CAT.

Switzerland has a reputation for being a highly efficient user of the Dublin system, a “blindly”  mechanical efficiency that human rights groups including Amnesty Internationalexternal link say ride roughshod over the most vulnerable of individuals. The Swiss Refugee Councilexternal link wants Switzerland to stop sending vulnerable asylum seekers back to Italy because “adequate reception is not guaranteed there”.

In 2017, Switzerland made 2,297 transfers invoking The Dublin III Regulation to neighbouring Italy, Germany and France and received 885 transfers from those countries, accordingexternal link to the Council.

“Switzerland stands out as one of the biggest users of the Dublin system, even though volumes are, for instance, much smaller than those of Germany,” notes Francesco Maiani, an expert on European asylum policy and law. “Switzerland is one of the countries that consistently had more transfers to other countries than transfers from other countries.”

However, two clauses with the Dublin Regulation III actively encourage a softer approach. One is the sovereignty clause. The other is the humanitarian clause.

Dublin Regulation

The sovereignty clause located in Article 17(1) of the Dublin Regulation gives members states the possibility of examining any application that is lodged with them, especially for humanitarian or compassionate reasons.

Under the “humanitarian clause” found in Article 17(2) of the Dublin Regulation, Member States may agree to transfer responsibility to a state that would not be responsible under the criteria so as to keep or bring him/her together with family relations.

end of infobox

The SEM told swissinfo.ch it applies the “sovereignty clause” when a transfer “would contravene mandatory provisions of international law or in the presence of humanitarian grounds indicating that a transfer is a particularly rigorous measure.”

It also rejected the notion that it applies the Dublin Regulation “blindly.”

“The whole ethos of the Dublin system is quite problematic,” said Maiani, a member of the faculty of law at Lausanne University in a phone interview. “It tends to underscore that if you send asylum applicants away you win the game. If you admit them, you lose the game. And this of course introduces a lot of distortions in the process.”

In an October letter to UN special rapporteur on torture Nils Melzer, CSDM outlined its concerns over “the systematic expulsion of torture victims and other vulnerable asylum seekers under the Dublin Regulation from Switzerland to European Union countries where dysfunctional asylum systems that expose them to a real risk of inhuman and degrading treatment”.

A SEM spokesperson explained that Switzerland wants to see the Dublin III regulation reformed so that procedures are “faster and more efficient”, secondary migration prevented and responsibility between countries distributed more fairly. “Switzerland regularly takes this position at the European level and in bilateral talks with government representatives of EU member states and EU institutions,” the spokesperson said.

Not one, but two Dublin proceedings

For now, Jalal’s best shot at family reunification would be a Swiss decision to grant him asylum. But that risks being a lengthy process. The family got tangled in two Dublin proceedings — one to expel Jalal from Switzerland to Italy, the other a bid by Greece to see the family reunited in Switzerland.

“Sometimes a Dublin reunification can take up to two or three years although on paper things should move more quickly,” notes Michael Kientzle, who works with the refugee aid group in Greeceexternal link that filed a request for Switzerland to take charge of Jalal’s family. The request was rejected and is now being appealed.

The rest in limbo just like Jalal.

When asked about the case, SEM said it takes into account the arguments put forward in decisions made by CAT [which recently ruled in favour of an Eritrean asylum-seeker and torture survivor presenting similar circumstances.] “[If SEM] concludes that a transfer to a Dublin state would endanger a person, it will conduct the asylum procedure in Switzerland,” it said.

Shortly after being contacted by swissinfo.ch, SEM finally decided to examine his asylum claim. “The facts of his case have not changed,” noted Wijkström. “It’s great news for him but it underscores the arbitrariness of the whole system.”

Adding to the absurdity of it all, he added, the Lucerne prosecutor has kept open a case against Jalal over illegal entry and illegal stay. 

Arbitrary or not — the decision by authorities to hear him out has filled Jalal with a new sense of purpose and hope for a fresh start in Switzerland.

On the chilly morning of December 12, he met with a Caritas lawyer who will join him during his asylum hearing. He came prepared with all his documents, including X-rays and family identification booklet. 

 “Maybe things finally work out and I get to see my family,”  he tells swissinfo.chexternal link, consumed by nerves both about the outcome of his interview and the conditions of his mother and brother struggling to get on in a war-torn pocket of Syria.” All I can do is retell my story. They already have all the evidence.”

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