Update: 25.01.2012

Non-treatment of asylum applications of Iraqi refugees: FOM acted unlawfully

An inquiry commissioned by the Federal Council found out that Swiss authorities never treated applications for asylum of Iraqis which were submitted at the embassies in Egypt and Syria between 2006 and 2008. This is the result of a directive issued by the Federal Office for Migration (FOM) in 2006, with which the FOM violated existing Swiss law.

According to the FOM, these proceedings were unlawful because they transgressed procedural safeguards in the federal constitution and procedural rules in the asylum law. In addition, the investigation found that the FOM, when it issued the directive, was right to assume that applicants in Syria and Egypt received effective protection and that the principle of prohibition of expulsion or return (Art. 33 Para 1 of the Geneva Refugee Convention) has in principle been observed. Swiss NGOs on the other hand state that especially the situation for women in the local refugee camps must have been dreadful, a fact that must also have been known to the FOM.

Thousands of asylum applications piled up in Swiss embassies

During the second war in Iraq and the subsequent civil war-like state within the country from 2003 onwards, many thousands of Iraqis left their home land and sought refuge in the neighbouring countries. Between 2006 and 2008 the Swiss embassies in Syria and Egypt were confronted with around 7,000 and 10,000 requests for asylum of Iraqi nationals. These applications were neither treated on the ground nor were they forwarded to the FOM. The applications were shelved following the issue of a FOM directive of 20 November 2006, ordering not to treat such asylum applications.

The non-treatment of the asylum applications became public in the autumn of 2011. It was then when today’s head of the Federal Department of Justice and Police (FDJP), Simonetta Sommaruga was informed about the special regulation for the two countries. As a reaction, at the end of August 2011, she assigned former Federal Judge Michel Féraud with an external investigation. At the same time she also stopped the processing of the applications which had been started by then. The investigation aimed at determining as to whether or not prevailing law or information obligations have been infringed, and at finding as to how the remaining applications can be processed in conformity with the law.

No consequences for those responsible?

The report published on 22 December 2011 found that the special regulation by the FOM was unlawful and that information obligations were violated, too. But, according to its author neither a disciplinary responsibility nor criminal investigation proceedings are viable possibilities. In the eyes of former Federal Judge Michel Féraud comes to the political conclusion of his report that the occurrences are mainly due to the existing legal regulation: «Against the backdrop of experiences with the great inflow of asylum seekers in Syria and Egypt, the possibility that every Swiss diplomatic mission can accept and process asylum applications (Art. 19 Para 1 and Art. 20 of the Swiss Asylum Act) should be brought up for discussion.» For this reason, he recommends to abolish this special legal instrument.

His argumentation is in line with the policy of the Federal Council, that plans to scrap the so-called «embassy application procedure» in the course of the current revision of the Asylum Law. In a statement on the respective topic the Federal Council declares that all other European countries do not possess this legal measure, which leads to an uneven burden sharing of asylum applications to the detriment of Switzerland. Because of the obligation to process all submitted applications, major financial and personal resources are bound at Swiss representations abroad and in the FOM. The Council of States has already decided on scrapping the embassy application procedure on 12 December 2011. The National Council still has to confirm this decision.

NGOs: The situation in the refugee camps was very difficult

On its website, the Schweizerische Beobachtungsstelle für Asyl – und Ausländerrecht (Swiss Observation Organisation for Asylum and Aliens Law SBAA) criticises Féraud’s conclusion that the unlawful behaviour of the involved authorities is due to the embassy application procedure. This procedure is to be adhered to; instead it calls for an increase of embassy staff in order to be able to work off the entering applications quickly and according to law.

Other NGOs voice similar criticism. The Swiss Refugee Aid (SFH, Schweizerische Flüchtlingshilfe) published an article in which it criticises the fact that, from a legal point of view, it is unclear as to whether or not the indictable non-processing of asylum applications has already lapsed and the people responsible can still be brought to justice.

Amnesty International and SFH furthermore focus on the exact conditions under which the Iraqi war refugees had to live in Syria in 2006 and later. In their opinion, the FOM must have known that during the respective period the humanitarian conditions in Syrian camps were so precarious that refugees were forced into prostitution. Various media at the time described a veritable wave of sex tourism into Syria from the whole Gulf region. In a report of 24 June 2007 the British newspaper «Independent» talked about a million of Iraqi war refugees in Syria, amongst them around 50,000 women and underage girls which were forced to work in night clubs against their will.

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