When going home becomes a nightmare

A Tamil family in Geneva. In Switzerland there are about 50,000 people of Sri Lankan origin Keystone

A refugee cannot be sent back to a country if there is a risk of persecution or torture. However, risk assessments by the authorities are not always done correctly, say human rights organisations.

Some exiles therefore find themselves back in the nightmare from which they fled – for example in Sri Lanka.

Hans Peter Roth, a legal consultant who has worked with immigrants for almost 20 years, is not in the least bit surprised.

“Since 2010, several Tamils have been sent back who had been threatened. In this respect, these cases are just the tip of the iceberg,” he told swissinfo.ch.

The Federal Migration Office said at the beginning of September that two Tamils who had been recently deported from Switzerland had ended up in prison once they arrived back in Sri Lanka.

It is currently not known why the two were arrested or whether they had been treated unlawfully, the office added.

The Swiss embassy in the capital Colombo has been in contact with the Sri Lankan authorities to get more details. While it waits for clarification, the migration office has temporarily suspended repatriations to Sri Lanka.

“I’ve always endeavoured to find out more about what happens to people who are sent back to Sri Lanka,” Roth told swissinfo.ch. “But I never had proof – only indirect evidence – that pointed to abuse.”

He says there has been no improvement in the situation since the 2009 defeat of the Liberation Tigers of Tamil Eelam (LTTE). “There are indications that genocide continues at a structural level, with land expropriations, displacements and the destruction of temples.”

Christopher McDowell, a professor at City University in London and author of a book on the Tamil diaspora in Switzerland, points to recent human rights advocacy reports which emerged between October 2011 and September 2013 and statements from UN human rights chief Navi Pillay “highlighting concerns about militarisation in Sri Lanka, serious concerns about the freedom and rights of minority groups, journalists, human rights defenders and suspected LTTE members”.

Criticism

Migration office spokeswoman Céline Kohlprath said developments in Sri Lanka were carefully monitored, using, among other resources, information from the Swiss foreign ministry, December 2012 guidelines from the United Nations Refugee Agency (UNHCR) and reports from other European states.

This type of assessment takes place regularly and also involves the Swiss embassy in the country concerned, said Denise Graf, asylum expert at the Swiss branch of Amnesty International.

“Afterwards, the authorities justify whether to carry out a repatriation policy,” she told swissinfo.ch.

Graf said that in some countries, the research is carried out in close collaboration with human rights organisations, such as Amnesty International.

“For example in Turkey, this system works quite well. But this is not always the case. In the past, there have been express criticisms because the assessments were not made on a regular basis and were not correct.”

The validity of these enquiries, she added, “depends a lot on the sensitivity of the person who carries out the research.”

Continuing practice

In the case of Sri Lanka, human rights organisations say Switzerland’s decision was wrong to proceed with the repatriations (267 people between March 2011 and July 2013) after the end of the war.

“The migration office determined that the security situation had stabilised. In fact, the fighting had ceased. But in its assessment it had failed to take into account human rights and risks facing someone sent back from Switzerland,” Graf said.

Hans Peter Roth insists that the migration office’s assessment “is in stark contrast to reports from the most renowned NGO”.

The Society for Threatened Peoples wrote on September 2 that despite reports by human rights organisations which since 2012 had documented rejected Tamil asylum seekers being tortured on returning, “the Federal Migration Office has continued its practice of sending people back to Sri Lanka”.

Legal action

People repatriated by Switzerland who are then victims of abuse on return to their country can take legal action against Switzerland, says Beat Meiner, secretary general of the Swiss Refugee Council.

“They can turn to the UN Committee against Torture or the European Court of Human Rights for violations against the human rights convention,” he told swissinfo.ch.

There are currently 11 of these cases concerning Sri Lankan citizens: eight with the UN Committee against Torture and three with the European Court of Human Rights in Strasbourg, according to the Society for Threatened Peoples in a report published on September 2, 2013.

The claimants accuse Switzerland of violating the principle of not turning away people, since the decision to send them back to Sri Lanka would mean they would find themselves in a dangerous situation.

Case by case

Kohlprath says the migration office examines each request individually and decides whether the applicant faces a real danger in Sri Lanka.

“It goes without saying that people at risk are not repatriated, but are taken in temporarily,” she said.

She added that the office also referred to a ruling by the Federal Constitutional Court in October 2011 which established that returning rejected asylum seekers was basically all right across the entire country, with the exception of the northern region of Vanni, the last stronghold of the Tamil Tigers.

Kohlprath recalls that, more recently, Switzerland had updated its standard procedure based on a decision by the British Upper Tribunal (Immigration and Asylum Chamber).

On July 5, the court confirmed the legality of repatriations, but gave the status of a person at risk – and therefore unable to be repatriated – to witnesses of war and political activists.

Petition

In addition to temporarily suspending repatriations, Kohlprath says the migration office has decided to carefully re-examine the dossiers of everyone set to be sent back to Sri Lanka.

“A particular focus will be on whether a person has been politically active abroad, especially in Switzerland,” she said.

Christopher McDowell welcomed the decision to suspend repatriations but warned that “the situation in Sri Lanka continues to provide risk for returning failed Tamil asylum seekers”.

But for NGOs, the measure does not go far enough. Via a petition, Amnesty International, the Society for Threatened Peoples and other Swiss organisations are calling for the government to end repatriations once and for all.

They also want the suspension of talks – launched at the end of the war – about a readmission agreement between Bern and Colombo.

“The agreement goes completely against the principle of not turning away refugees to countries which practise torture,” the NGOs said in a joint statement.

For Denise Graf at Amnesty, “you can’t reach such an agreement with a country that violates human rights at such a level”.

(Translated from Italian by Thomas Stephens)