More than 600 children and adolescents arrive in Switzerland every year without the accompaniment of parents or other guardians and file asylum applications.
Minor asylum seekers are deemed unaccompanied if they are not accompanied by their parents or another adult in whose care they have been entrusted.
Special consideration called for
Special consideration must be given in the asylum procedure to the special situation of young asylum seekers who are fleeing alone. They are overwhelmed by the asylum procedure due to their age and inexperience. The Swiss asylum procedure therefore provides for specific measures for dealing with the special situation of unaccompanied minor asylum seekers (UMAs).
Child’s best interests take precedence
The UN Convention on the Rights of the Child, which Switzerland also ratified, stipulates that the best interests of the child must always have priority. Based on this principle, it is incumbent upon the authorities to proceed appropriately in dealing with unaccompanied minor asylum seekers. The protection of children and young people and their right to integrity and to the encouragement of their development is anchored in the Federal Constitution (Art. 11 FC).
The consideration given to the special situation of unaccompanied minor asylum seekers in the Swiss asylum procedure is legally based on the Asylum Act, the Asylum Ordinance 1 on Procedural Issues, the Foreign Nationals Act and the Return Directive.
The Federal Council can issue supplementary provisions to give consideration to the special situation of minors in the Swiss asylum procedure (Art. 17 para. 2 AsylA). Priority must be given to the processing of applications for asylum made by unaccompanied minor asylum seekers (Art. 17 para. 2bis AsylA). The responsible cantonal authorities shall immediately appoint an authorised representative for unaccompanied minor asylum seekers, to take care of each minor’s interests for the duration of the procedure at the airport and of the minor’s stay in a reception and processing centre, provided decisive procedural steps significant for the decision are being carried out (Art. 17 para. 3 lit a and b AsylA).
Reliable person and advisor
After unaccompanied minor asylum seekers are assigned to a canton, the cantonal authorities provide them each with an advisor. If this cannot be done immediately, the cantonal authorities name a reliable person to take care of each of the minors for the interim (Art. 17 para. 3 lit. c AsylA) (Art. 7 para. 2 AsylO 1). This person must safeguard the interests of the minors. He or she should accompany and support the minor during the asylum procedure (Art. 17 para. 3 AsylA) (Art. 7 para. 3 AsylO 1).
Respecting minority status
The person conducting the hearing with a minor must keep in mind the special aspects associated with being a minor (Art. 7 para. 5 AsylO 1). This obligation is clearly emphasised in a ruling issued by the Federal Administrative Court in July 2014. Consideration must be given to:
- the minors' age,
- their level of maturity,
- their capacity to understand questions, to remember and to express themselves,
- their ability to understand the complexity of the matter and the procedure, and
- their ability to recognise how compelling a statement may be as evidence.
In addition, the person conducting the hearing must ensure that the child’s best interest are being taken into account throughout the hearing (FAC ruling E-1928/2014 issued 24 July 2014).
Safeguarding procedural rights
The decision on the application for asylum of a minor who has neither a guardian nor an advisor nor a legal representative must be revealed both to the person concerned and to the reliable person assigned to take care of him or her. The appeal period begins the day after the day on which both of these parties know about the decision (Art. 53a AsylO 1). This provision is meant to safeguard the procedural rights of unaccompanied minor asylum seekers.
Respecting the concerns of young people
Unaccompanied minor asylum seekers often have great difficulties in proving their age. If the State Secretariat for Migration (SEM) has doubts about the indicated age, it has the age checked by means of hand bone analysis for age determination. This method is scientifically controversial and has only limited diagnostic value according to the decisions of the Federal Administrative Court (FAC decision E-5088/2007, EMARK 2001/19).
Statements are decisive
Appearance and statements by the asylum seeker are therefore decisive in assessing the credibility of the indicated age.
If the SEM concludes that an asylum seeker is not a minor contrary to his or her claim of being one, the person must be given a chance to state his or her position on the matter (legal hearing).
Detention for minors
Higher standards of protection under the Dublin III Regulation
The Dublin III Regulation, which has been provisionally applicable in Switzerland since 1 January 2014, improves procedural guarantees for minor asylum seekers (especially unaccompanied ones). This regulation gives central importance to the child’s best interests.
Member states must ensure that unaccompanied minors are assigned a representative having qualifications and expertise as well as access to the relevant documents of the minors (Art. 6 para. 2 Dublin III Regulation). States must take due account of the child’s best interests in their cooperation with each other as regards
- family reunification possibilities,
- the minor’s well-being and social development,
- safety and security considerations, and
- the views of the minor, in accordance with his or her age and maturity (Art. 6 para. 3 Dublin III Regulation).
The Member State where the unaccompanied minor lodged an application for international protection shall, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of member states (Art. 6 para. 4 Dublin III Regulation). The staff who deal with applications for asylum of unaccompanied minors shall have appropriate training (Art. 6 para. 4 Dublin III Regulation).
Child’s best interests central to determining jurisdiction
The presence of family members, siblings or other relatives is of great significance for determining the Member State in the Dublin system responsible for processing the application for asylum. As a rule, the Member State responsible is the one where family members, siblings or relatives of the minor are legally present. Relatives must also be able to care for the minor. Determination of responsibility must serve the child’s best interests (Art. 8 paras. 1-3 Dublin III Regulation).
In the absence of family members, siblings or relatives, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for asylum (Art. 8 para. 4 Dublin III Regulation).