Judgment of the TAF (D-7898/2015): dangerous negligence

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Link: Judgment of the TAF

On 3 February 2017, the Federal Administrative Court (TAF) decided to change its practice on Eritrean refugees and their illegal exit from Eritrea.

Current country information available to the TAF would demonstrate that “illegally released persons can no longer claim to be treated as traitors and exposed in their country to harsh punishment for a relevant asylum reason”.

The Swiss authorities would rely on internal guidelines in Eritrea indicating that persons exempt from national service and young people who had left the country before the age of service (18 years) would not be considered “traitors”.

It is important to pause on these lines and analyze them in depth:

1. Why is the exit “illegal”?

The exit is designated “illegal” because the Eritrean government does not allow its civilian population to enjoy its freedom of movement. The government generally does not issue passports to its population unless an individual has reached the age of 65, theoretically exempting him from national service. This means that every citizen between the ages of 18 and 65, forcibly consigned to the national service, has no possibility of leaving the country legally.

In addition, freedom of movement within the country is also severely restricted. Indeed, the movements of conscripts are controlled and authorized by military commanders as well as by local administrative offices, also under the control of the military.

2. A forced exit by the impossibility of taking his destiny into his own hands

Secondly, the practice of national service, making individual choices impossible for one’s own destiny, is one of the reasons why Eritreans leave their country en masse. In this context, conscripts often work without pay, under difficult conditions and in areas very far from their homes, which rarely allow them to see their families. Severe punishments are imposed on conscripts daring to express a disagreement or showing a lack of will to carry out the work. It is because of these elements and because of the absence of individual freedoms that the population leaves the country illegally. The practice of national service constitutes a serious violation of their human dignity and violates international human rights law and Article 565 of the Eritrean Transitional Criminal Code.

3. Arbitrary decisions in place of legal proceedings

In the absence of basic principles of the rule of law in Eritrea, the fate of an individual does not depend on a legal procedure but on arbitrary decisions by the authorities. State action is therefore totally unpredictable and illegible. Thus, the approach to distinguishing categories of Eritrean refugees is difficult and the conclusions of the SEM and the TAF are imprudent.

4. A broken trust

On several occasions the Eritrean government has failed to fulfill its commitments vis-à-vis third states, notably asking it to enforce its Constitution or even its own people claiming democratic reform for more than 16 years. This lack of political will of the Eritrean government is beyond anyone’s control. Nevertheless, Switzerland seems willing to validate the “internal guidelines of the country”. In view of all the elements mentioned above, this approach is very unreliable as it has no serious basis. In its press release of 3 February 2017, the OSAR (Swiss Refugee Organization) states that “the TAF judgment is knowingly negligent”. IFE shares this assessment.

In view of the above, it is clear that the totalitarian abuses of the Eritrean authorities are not unknown to the SEM and the TAF. Both institutions are fully aware of the risks that Eritrean asylum seekers face in returning to their country. Therefore, the Swiss authorities should in no case “claim” that the said internal directives would guarantee the safety of persons returning to Eritrea.

After more than 16 years of political repression, only deep and transparent reforms of governance and justice will allow Eritrean refugees to return to their country safely.