H.I. v. SWITZERLAND

THE FACTS

1. The applicant, Mr H.I., is an Eritrean national who was born in 1976 and lives in Switzerland. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr T. Hassan, a lawyer practising in Zürich.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant entered Switzerland illegally on 29 April 2012 and applied for asylum the next day. He was heard in person twice by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the Bundesamt für Migration, renamed with effect from 1 January 2015 as the Staatssekretariat für Migration, SEM – hereafter “the State Secretariat for Migration”). During both hearings an interpreter was present and the record was translated for the applicant prior to his signing it.

4. The first hearing was a summary interview on 7 May 2012. The applicant stated that he had dropped out of school in tenth grade to become a sportsman and that he had been drafted into the military and assigned to the S. military training camp in 1996. He had served in the Eritrean‑Ethiopian war in three different places. In 2001 he had been reassigned to K., where he had remained until his departure in September 2011. He had twice been imprisoned for disobeying military orders, from May to November 2001 because he had refused to train to become a professional soldier, and from 12 December 2002 onwards for a period of one and a half years because he had gone to the military hospital for an appointment rather than attending training, without making a formal request to be absent. He also had his salary cut a number of times and his freedom of movement restricted after his imprisonment. He stated that he felt that he could not decide on matters of his own life during military service and that the duration of the service was too long. Therefore, he had decided to flee. After ten days’ holiday in Asmara, he had returned to K. on 5 September 2011. On 9 September 2011, at around 5.30 pm, he had left K. on foot with two fellow soldiers called N. and S. They had walked through the night to G. and then rested in a riverbed during the day, before continuing to Kassala, Sudan, where they had arrived at around 6 p.m. From there he had travelled to Khartoum and subsequently to Europe by airplane, with the help of a smuggler. In order to support his account, the applicant submitted copies of his identity card and of his birth certificate, the latter issued in Asmara on 24 March 2011.

5. The second, more detailed hearing took place on 23 September 2014. A member of a non-governmental organisation was present as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing in the event that he had witnessed any irregularities, but did not make any such observations.

6. The applicant stated that, during his first period of imprisonment in 2001, he had repeatedly been beaten all over his body and for a month had been forced to stay in the sun for two hours every day with his hands tied. He had subsequently suffered from various health problems, including problems with his knees, which prevented him from walking far. He had not been subjected to ill-treatment after his second release from prison. He decided in 2010 to leave Eritrea because he could no longer bear military service, which seemed endless to him. Due to the strict surveillance he was under, he did not carry out this plan right away.

7. When giving an account of the alleged events leading up to his escape, he stated that he had been granted a month’s holiday, starting from 3 May 2011, in connection with his wedding. He had then extended his holiday for another three months without authorisation, until 4 September 2011, in order to obtain custody of his daughter from a previous relationship. After about two months, four persons from his military unit had gone looking for him at his house in Asmara, where they threatened his mother and sister. He had managed to hide with relatives because he had received advance information from friends about the search. When he learned from his friend G., who worked in the brigadier’s office, that the authorities were to come to his house again to arrest him, he returned to the military unit in K. He submitted that he had hoped that he could avoid a prison sentence by returning voluntarily. He said that a salary cut for a period corresponding to that of the unauthorised absence was the usual punishment if soldiers returned voluntarily. When he learned from his friend G. that it had already been decided that he would be imprisoned, he stayed with his unit for another two days before leaving on foot with his fellow soldiers N. and Z. in the late afternoon of the third day, 10 September 2011. To avoid attracting attention, they had left separately, pretending to go to defecate outside the barracks, and then met up at an agreed location some fifteen minutes’ walk away. Both he and N. knew the area and the placement of soldiers well, which enabled them to avoid being caught while walking towards G. and, subsequently, Kassala. On 15 June 2015 the applicant submitted seven pictures of himself as a footballer and eight pictures of himself in military uniform.

8. On 14 September 2015 the State Secretariat for Migration rejected the applicant’s asylum request and, noting that there were no obstacles to his return to Eritrea, ordered his departure from Switzerland. It took into consideration that he claimed to have been imprisoned for disobedience twice between 2001 and 2004, that is, several years before his departure from Eritrea. It found that there was no sufficient causal link between the two events and that, consequently, the alleged imprisonment was not relevant for the assessment of the applicant’s asylum claim.

9. The State Secretariat for Migration found that the remainder of the applicant’s account was not credible. It pointed out that he had stated at the first hearing that he had been in Asmara for ten days’ holiday before returning to his military unit in early September 2011. At the second hearing he had stated that he had stayed in Asmara for four months, from May to September 2011, having extended his leave in connection with his marriage in May 2011 without authorisation for another three months. His claim that he had returned voluntarily to his unit when he learned that the authorities were searching for him was not comprehensible. He had also made contradictory statements concerning the punishment at issue following the return to the military unit. In addition, he had initially stated that the only problems he had encountered since being released from prison in 2004 had been occasional cuts to his salary. His subsequent statement, that he feared being imprisoned in September 2011, was not credible. As regards his alleged illegal exit, the State Secretariat for Migration noted that he had claimed to have walked from K. to Kassala in one day and to have rested in a river bed during the day to avoid being caught by the authorities. As the distance between the two places was about one hundred kilometres, and he had previously claimed to have problems with his knees which prevented him from walking far, it deemed this account not to be credible.

10. On 16 October 2015 the applicant lodged an appeal against that decision before the Federal Administrative Court. He submitted that his imprisonment between 2001 and 2004 was relevant to his asylum claim and had to be assessed. Disobeying military orders had caused him to be considered as an enemy to the regime ever since. He had considered fleeing earlier, but had refrained from putting his plan into practice because of strict surveillance by the authorities. When he risked being imprisoned again in 2011, he had fled. He submitted that he had stated, at both hearings, that he had been in Asmara until 4 or 5 September 2011 and had escaped from his military unit on 9 or 10 September 2011. The State Secretariat for Migration had not confronted him at the second hearing concerning the alleged discrepancy whereby, at the first summary hearing, he had said that he had been on holiday in Asmara for ten days only, the latter being the result of an apparent misunderstanding. He had plausibly explained his motivation for returning voluntarily to his military unit in K., notably that he had hoped for a less severe punishment in the form of a salary cut. He could not be blamed for having focused on explaining his earlier imprisonment rather than the risk of renewed imprisonment in 2011 during the first summary hearing, as he had been told that he would be heard more thoroughly later on. His descriptions of his flight route had been consistent. It had taken him three days, not one, to travel from K. to Kassala. However, the State Secretariat for Migration had failed to confront him with this alleged discrepancy during the second interview, asking him only about the border crossing. As a simple soldier who had previously been imprisoned, he stood no chance of obtaining an exit visa. Furthermore, he had health problems and could no longer rely on a family network in Eritrea as his father had died in the meantime. The fact that he had sought asylum and had been absent from Eritrea for years further increased his risk of ill-treatment.

11. On 4 September 2015, the State Secretariat for Migration provided a written statement to the Federal Administrative Court, explaining that references to the applicant’s claim relating to his recruitment, his service in the war between Eritrea and Ethiopia and photographs showing the applicant as a young man in military uniform, had been omitted from its decision of 14 September 2015 because the said events had occurred several years prior to the applicant’s departure from Eritrea in 2011. These aspects and documents could thus not support the applicant’s claim as to the reason for and circumstances of his departure. In another statement of 11 April 2016 the State Secretariat for Migration acknowledged that it was credible that the applicant had, a long time before, had contact with the military authorities. However, it could not be concluded from this that he had deserted, as he might have been released from military service on health or other grounds. It had to be borne in mind that several thousands of soldiers had been demobilised after the end of the war between Eritrea and Ethiopia.

12. On 15 June 2016 the Federal Administrative Court rejected the applicant’s appeal. It noted that the State Secretariat for Migration had thoroughly reasoned why the majority of the applicant’s statements were contradictory and had correctly applied the standards for assessing his credibility. The appeal submission had failed to indicate the reason for the alleged unlawfulness of the State Secretariat’s evidentiary assessment, which the court endorsed, including with regard to the photographs showing the applicant in military uniform. The court also considered that the applicant had failed to demonstrate credibly his alleged illegal exit from Eritrea. His statements regarding the days he had spent with his military unit prior to escaping, the preparations and the escape itself lacked detail. He was unable to describe the location where he had agreed to meet with his two fellow soldiers. He was also unable to specify the costs of his air travel from Sudan to Europe, borne by his relatives in Saudi Arabia, or to say with which airline or papers he had travelled to Italy. He could legitimately have been expected to provide a substantiated account of his alleged illegal exit if he had indeed experienced it. Finally, the court added that Eritrean nationals who had left their country illegally could avoid the risk of being subjected to treatment contrary to Article 3 of the Convention by paying a small diaspora tax. It found that there were neither general obstacles to returns to Eritrea, such as war or general violence, nor individual ones, as the applicant still had intact family relations in Eritrea, where his wife, parents and sister lived. He also had relatives living abroad with some financial resources who, he submitted, had previously supported him by paying for his journey from Sudan to Europe.

13. On 23 June 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 21 July 2016.

14. On 18 July 2016 the applicant lodged a request for re-examination with the State Secretariat for Migration. He argued that he could present new evidence as he had managed to find soldiers who had served in the same military unit as he had, all of whom had been granted refugee status in Switzerland and would be willing to testify concerning his military service and imprisonment. This way he could prove, or credibly demonstrate, that he was at risk of ill-treatment in Eritrea on account of his desertion and illegal exit. He also submitted a death certificate in respect of his father.

15. On 12 October 2016 the State Secretariat for Migration dismissed the request as inadmissible for lack of competency. Observing that the applicant had not relied on a change in circumstances in Eritrea or new grounds that had not existed at the time of the Federal Administrative Court’s judgment of 15 June 2016, it concluded that the request did not constitute a request for re-examination or a subsequent asylum application within its competence. It noted that the request could be considered as a “qualified” request for re-examination within the Federal Administrative Court’s competence and that the applicant could turn to that court if he wished to pursue such a request.

B. Relevant domestic law and practice

16. The relevant domestic law and practice has been summarised in M.O. v. Switzerland (no. 41282/16, §§ 34-35, 20 June 2017).

C. Relevant country information on Eritrea

17. The relevant country information on Eritrea has recently been summarised in M.O. v. Switzerland, cited above, §§ 36-53. No reports about events and developments indicating a significant change in the situation have been published since the delivery of that judgment on 20 June 2017.

COMPLAINTS

18. The applicant complained that he would face a real risk of being subjected to treatment in breach of Articles 3 and 4 of the Convention if he were deported to Eritrea.