Update: 14.09.2016

Suspected human trafficking in asylum proceedings – reprimand from the Federal Administrative Court

If human trafficking is suspected in an asylum procedure, the State Secretariat for Migration (SEM) must take action on its own initiative. This detailed and pioneering decision was published the Federal Administrative Court.

The cruel practice of Nigerian human traffickers

The Federal Administrative Court’s ruling was passed because of a Nigerian woman who entered Switzerland in 2003 and applied for asylum. Scars all over her body proved that she had been exposed to the “Juju” ritual typically practiced by Nigerian human traffickers. Affected women are exposed to a voodoo ritual during which a “Juju priest” inflict cuts and burns. Subsequently the women are treated with substances that impair the healing process which leads to life-long disfiguration. The victims fear grave repercussions and generally refrain from telling police or asylum authorities of their agony or the exact circumstances of their escape to Europe. The complainant had only indicated she had been victim of human trafficking during an application for re-examination after her request for asylum had been rejected in 2013.

Human trafficking violates basic human rights

Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) bans slavery and forced labour. This ban requires member states to provide comprehensive protection against human trafficking. According to the Court’s statement, this modern form of slavery is neither compatible with a democratic society nor with the values that have always formed the basis of the ECHR.

The Federal Administrative Court extensively detailed how to fulfil this requirement. It referred to the Council of Europe treaty against human trafficking and recommendations from GRETA (Group of Experts on Action against Trafficking in Human Beings) in its evaluation report.

In this evaluation report, Switzerland has been encouraged to actively observe and implement the requirements to fight against human trafficking. This primarily includes correctly identifying all victims of human trafficking.

Systemic silence

Victims of Nigerian human traffickers are generally very young, poorly educated and have already witnessed and experienced many cruelties themselves. It is therefore easy to control them by threatening to use violence and forcing them not to reveal their stories to the authorities. Since the victims are indebted, their tormentors force them to work to pay off the cost of their trip to Europe, their forged documents, and room and board through prostitution and drug smuggling. This happened to the complainant. Although she had been convicted for drug offences in Switzerland, she kept silent even during the criminal proceedings. The fact that affected persons remain silent or provide false or contradictory information and cannot explain the wounds on their bodies should not be a reason to ignore them. The Federal Administrative Court is instead urging asylum authorities to examine such cases more closely.

Authorities must take legal action

According to the sentence, migration authorities have failed to address such cases. The Federal Administrative Court believes the State Secretariat for Migration has not fulfilled its fact-finding duties. Administrative law should respect the inquisitorial principle, meaning the State Secretariat for Migration must take action when there is hard evidence of human trafficking. The authorities did not consider the new evidence submitted by the complainant during her application for re-examination even though it had considerable knowledge of the practices of Nigerian human trafficking. Through meticulous research, the Federal Administrative Court has now evaluated what is currently known by Swiss and foreign institutions and clearly stated what the State Secretariat for Migration should have known.

No immediate consequences

The successful complaint means the State Secretariat for Migration must issue a new ruling based on an extensive survey. However, it has still not decided if the complainant has the right to remain in Switzerland permanently. After 13 years of asylum proceedings and clear indications for human trafficking found by the Federal Administrative Court, the complainant can clearly only be protected by accepting the application for re-examination. Although the rule of law has prevailed, the complainant still does not know the outcome of her case.

Commentary by humanrights.ch

Trafficking women and girls and forcing them into prostitution is one of the most serious violations of human rights. Protecting the victims must therefore take top priority in the fight against human trafficking. By ratifying the Council of Europe Convention on Action against Trafficking in Human Beings in 2011, Switzerland committed to providing as much protection as possible. Identifying victims is crucial (cf. Art.10 of the Council of Europe Convention on Action against Trafficking in Human Beings) since, as the above case shows, the victims themselves frequently cannot talk about their experiences or have them legally assessed.

Many international organisations have drawn up guidelines to combat problems of identification. The Swiss Coordination Unit against the Trafficking in Persons and Smuggling of Migrants (KSMM) compiled a checklist in 2005 on the identification of victims in which it refers to the directives of the State Secretariat for Migration.

Both KSMM and the Swiss Refugee Council have in previous years organised continuing education on witchcraft, juju and human trafficking. But, as this case shows, there is still a great need for sensitivity training and information for authorities.

In this case, there were several instances where action should have been taken according to the principle of ex-officio investigation applied in the asylum procedure. The verdict now forces the asylum authorities to take the necessary measures to ensure that future investigations are undertaken.

Documentation

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