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Switzerland: The Federal Administrative Court rules that there is no collective persecution of Afghan women giving rise to automatic recognition of refugee status.
On 23rd April 2024, the Federal Administrative Tribunal (FAT) of Switzerland ruled in the case E-2303/2020.
The case concerned an Afghan couple and their three minor children belonging to the Hazara minority, who applied for asylum in Switzerland on 8th February 2018. On 16th March 2020, the Secretary of State for Migration (SEM) definitively rejected their asylum applications due to contradictory statements and ordered their expulsion from Switzerland. The expulsion was postponed following the temporary admission. The applicants challenged this order issued by the SEM. In a memorandum of 4th September 2023, the applicant stated that the situation of women and girls in Afghanistan had worsened since the Taliban came to power and that she should be granted asylum. In a subsequent communication the applicant’s legal representative requested a review of her individual case and referred to a change in the SEM’s practice towards Afghan asylum seekers according to which Afghan women and girls would be recognised by the SEM as potential victims of discriminatory legislation and religious persecution and would therefore be granted refugee status.
The FAT recalled its previous caselaw establishing that the specific assessment of the risk profile must be carried out on a case-by-case basis and found that the applicants had not been able to credibly present the essential elements and circumstances that led them to flee their country of origin. The FAT also indicated that according to its caselaw collective persecution of Hazaras in Afghanistan cannot be presumed even after the Taliban came to power. On the question of the situation of women in Afghanistan since the Taliban came to power, the FAT stated that it had not yet assumed in its caselaw of collective persecution based on their gender. Under Article 3(2) sentence 2 of the Asylum Law, reasons for flight specific to women must be taken into account in the interpretation of Article 3(1) of the Asylum Law, however, the FAT considered that this does not mean that all women would automatically be recognised as refugees. Each woman applying for asylum must demonstrate in each individual case that she has a well-founded fear of persecution. Interpreting the SEM’s information sheet on the ‘change of practice for Afghan female asylum applicants’, the FAT considered that the collective persecution of women and girls cannot be presumed on the basis of gender alone, but only on the basis of additional grounds of persecution. The FAT thus indicated that the persecution must have a certain degree of intensity, which would be attained, for example, if a woman faced a forced marriage or was at risk of being the victim of an honour crime and did not benefit from the same State protection as a man. In the present case, the Court considered that the applicant is a married woman and that there is no risk of violence against her that is relevant to the right of asylum. In addition, the Court noted that no individual reason had been put forward to justify the applicant’s flight. The FAT concluded that there was nothing in the files to indicate that the complainants would be exposed to a risk of persecution if they were to be returned to Afghanistan and therefore upheld the SEM’s order.
Thanks to the Elena Weekly Legal Update team for this summary
