In the summer of last year, two Sri Lankan nationals whose asylum applications had been rejected in Switzerland were arrested upon their return to Sri Lanka. The Federal Office for Migration (FOM) had rejected their asylum applications in 2011 and later issued removal orders. The Federal Administrative Court had declared that the removal orders in both cases were permissible and reasonable. The two former asylum seekers are now currently still in detention. The Swiss Embassy in Colombo remains in regular contact with family members of both individuals.
The FOM regrets the outcome of both cases. As soon as he was notified of the arrests, FOM Director Mario Gattiker immediately ordered a full investigation involving both internal and external reviews. The report by law professor Walter Kälin, head of the Swiss Centre of Expertise in Human Rights (SCHR), as well as the one drafted by the Office of the United Nations High Commissioner for Refugees (UNHCR) are now complete. Both draw similar conclusions to those drawn by the internal review. The accumulation of these factors resulted in an incorrect assessment of the personal risk to which the asylum seekers were exposed. Several factors contributed to this outcome:
- Complex context in Sri Lanka: In both cases, four years had elapsed from the moment the asylum applications were submitted (2009) until the removal orders were carried out (2013). In this period of time, the situation in Sri Lanka had changed: after the war ended in 2009, the great hopes for reconciliation were dashed and pressure on Sri Lankan Diaspora increased.
- Asylum applications handled by too many people: the long period of time meant that several people had worked on the same asylum applications. The person who interviewed the asylum seekers was not the same person who later made the decision to deny asylum.
- Restructuring: This period coincided with restructuring of the FOM, which resulted in managers having to orient a large number of employees. This had an impact on both managerial activities and on the quality of the work performed by FOM employees. With the organisational measures launched in 2012, this factor is no longer a problem.
- Procedural gaps: in some respects, the hearings in both cases were not conducted as thoroughly as they should have been. In addition, there was limited follow-up for clarification.
Findings and corrective action
The reviews conclude that neither the incorrect assessment of the risk to which the asylum seekers were exposed nor the arrests that followed their return could not be attributed to any single factor nor to any single FOM employee: there was no improper conduct of a legally relevant nature nor any gross negligence on the part of FOM employees or their managers. Therefore, no punitive action needs to be taken against individual employees.
FOM management took action by re-examining the various procedures and processes to identify optimisation potential. FOM Director Mario Gattiker ordered the corresponding organisational units within FOM to quickly and systematically implement optimisation measures and assessor recommendations. Most of the required action steps have now been taken. The FOM has reviewed and adapted the basic training provided to new employees, expanded continuing training options and made improvements to the level of technical support provided to FOM employees. Working instruments have also been revised. Finally, the FOM strives to ensure that the decision on whether to grant or deny asylum is made as soon as possible after the hearing and that this decision is made by the same person.
The processing of asylum applications is an extremely challenging endeavour that requires extensive expertise as well as analytical, communication and psychological skills. The FOM must continuously assess the quality of its procedures and make improvements where needed. In addition, the FOM intends to intensify exchanges with UNHCR on quality control.
Risk assessment based on new criteria
A new assessment of the situation in Sri Lanka was needed in response to the changing circumstances. The FOM carried out this assessment with support from the Federal Department of Foreign Affairs (FDFA) and other federal agencies in March 2014. The assessment was also based on reports from international organisations (mainly UNHCR) and an analysis conducted by FOM staff working in Sri Lanka. This gave rise to a new risk profile: additional criteria were added to enable determination of the level of risk to which asylum applicants were exposed. At the same time, the FOM established new practices for the handling of asylum applications and the issuance of removal orders for Sri Lankan nationals in accordance with the current situation in Sri Lanka. These new practices are also aligned with UNHCR recommendations and jurisprudence of the European Court of Human Rights.
Therefore, the conditions are now in place for case-per-case review of asylum applications from Sri Lankan nationals. The suspension of decision-making and execution of removal orders in place since August may now be lifted. Resumption of decision-making means that all asylum seekers will now have their asylum applications re-examined on the basis of updated criteria to determine their current level of risk. Those whose applications are denied will receive legal counselling and in some cases, the FOM will initiate a new procedure. The proportion of successful asylum applications may therefore increase as a result of the new risk profile.
Last modification 26.05.2014