Hardship cases regulation collides with children’s rights
Families living in Switzerland without valid residence permit have the possibility to legalise their stay under certain conditions under the hardship case regulation. The legal criteria for hardship cases provide the cantons with an extensive scope of discretion – a scope, though, which is frequently applied against the victims’ interests protected by human rights.
A study by the SBAA provides an overview of the legal fundamental principles and, with the help of eight carefully documented case studies, unveils how differently the criteria for the acceptance of a hardship case are interpreted and applied and how some cantons use their scope of discretion contrary to children’s rights. Particularly exposed are families of rejected asylum seekers since from a legal perspective they do no longer have any possibility of appeal after a negative hardship case decision by cantonal authorities. At worst, they are without protection against official arbitrariness.
Children’s rights are ignored
In addition, in all hardship cases there occur systematic violations against the Convention on the Rights of the Child. Under the pretext that it is a written procedure, the children are not consulted on principle. And this although they were entitled to a consultation in connection with all administrative decisions which have severe effects on their living conditions.
In its media release of 3 November 2010, the SBAA sums its study up as follows: «Although this step is legally binding, the situation of the affected children is generally hardly considered. The authorities generally only assess the situation of the parents and forget about the children in their evaluation. This practice is particularly irritating in cases where the children and youths have been living in Switzerland for many years, have visited local schools, speak a national language fluently and are optimally integrated. In such cases repatriation contradicts the guarantees of the UN Convention on the Rights of the Child.
The SBAA demands that children’s rights no longer take second place to migration politics. The guarantees of the Convention are to be applied consequently, in particular in hardship cases. In general, a stronger focus has to be put on the children in the assessment of families as hardship cases.»
- Familien im Härtefallverfahren
Study by Claudia Dubacher and Lena Reusser, Swiss Observation Organisation for Asylum and Aliens Law SBAA (pdf, 26 pages)
- Härtefallpraxis kollidiert mit Kinderrechten
Media release by Swiss Observation Organisation for Asylum and Aliens Law SBAA (pdf, 1 page)