A Child vs Switzerland

In September 2021, the Committee on the Rights of the Child found Switzerland’s decision to expel a Syrian mother and her stateless child in violation of ten articles of the convention.

“… the strength of a people is measured by the well-being of its weakest members” -Federal Constitution of the Swiss Confederation, Preamble[1]

“I recently won a case,” my cousin says as we sit down for lunch, “defending a child.”

“A child vs Switzerland?” I ask.

Boris reminds me of Atticus Finch, the lawyer in Harper Lee’s To Kill a Mockingbird. In his early fifties, he even has the looks of Gregory Peck in the 1962 film adaptation. Serene, tall, slender, with the forward leaning gesture of the engaged, compassionate listener. Like Atticus.

I’m intrigued. As a human rights lawyer, he doesn’t often win cases. Boris and I are cousins on our mothers’ side. Both sisters were born in Spain, one married a Swede, the other a Colombian. We both married Swiss nationals, became Swiss citizens and live in Geneva. A few years back, he created a human-rights centre in Geneva, the Centre Suisse pour la Défense des droits des Migrants (CSDM).

“Well,” he says, “A Syrian mother and her eleven-year-old child escaped the Syrian war. The child was born stateless in a refugee camp. The father was abducted by the army, and the grandfather killed in a rocket attack. They headed north, to Switzerland, where the mother’s brother lives with his wife and children. To get here they first went through underground tunnels from Yelda to Damascus, then, paying traffickers, made it to Idlib, in the north of Syria. Crossed into Turkey, continued to Bulgaria…”

As Boris speaks, I wonder if the child saw the Swiss mountains like a light at the end of the tunnel. His uncle and cousins awaiting there, on the other side of agony.

Boris continues, “They were detained in Bulgaria. After a few weeks, they crossed into Romania, but were captured and sent back to Bulgaria. They were detained in a prison, at times sleeping on the floor, subject to body searches, then moved to an overcrowded refugee camp. After several attempts, they crossed into Switzerland, hidden inside the trunk of a car. So, after one year of terrible pilgrimage, mother and child arrived here and were reunited with their family. They filed for asylum in August 2018. The Swiss rejected the request. And issued an expulsion order to Bulgaria, on the basis of the re-admission agreement….”

“The Dublin agreements?” I ask.

Boris explains that since the asylum request had been concluded, the Dublin regulation, establishing which country is responsible for looking at an individual’s asylum application, was not invoked. What prevailed was a re-admission agreement between Switzerland and Bulgaria, which sends undocumented migrants back.

“The mother had signed, unaware of what she was signing, an asylum request in Bulgaria. She had been told, “sign this or remain in prison”. So, she signed. But Bulgaria rejected the asylum request.”

If these circumstances don’t merit refugee status, I wonder what does.

“Bulgaria promised subsidiary protection instead,” Boris continues, “a lesser form of protection given when a person does not meet the criteria for refugee status. They’d have adequate shelter, access to education, and healthcare. But they never saw any of that. The child never attended school, conditions in the camp were inhumane. The Swiss, on the grounds of the re-admission agreement and the subsidiary protection, issued the expulsion, without assessing the claims. They refused to engage in the matter.

My colleague lawyer, Gabriella Tau, and I were appalled with the facts in this case. We decided to file a complaint with the Committee of the Convention on the Rights of the Child”.

“You see,” he carries on, “it was wrong for the Swiss to send them back to a place where their safety was at risk. Plus, their only family in Europe is here. The child, by then eleven, was finally attending school, for the first time in his life, here in Switzerland. I mean, when he arrived, the child could not read or write in any language.”

“So, this child, your client, came to your office, here in Geneva?”

“Yes. They came to our office in the summer of 2019. The child was then twelve years old, he came with his mother, his uncle, and an Arabic-French interpreter.”

Boris continues, “I remember the uncle spoke very fast, the interpreter barely kept the pace. The family was pleading us to take their defence; afraid to lose our attention, they felt it was their last chance. The child sat calmly looking at the adults. My colleague later commented she felt for the child, who was obliged to hear once more the litany on persecution, discrimination, war, exile, loss, rejection.” Boris recalls the adults mentioned disturbing things no child should ever hear, let alone experience. It had hardened their resolve to take the case.

“The child spoke at one point during the hearing. He wanted the lawyers to know about an instance in their escape journey when he had defended his mother against the abuse of the Bulgarian police. He wanted us to know that he stood up for his mother.”

As Boris says this, I see, with my mind’s eye, the modest office of the non-profit organisation that he runs. I see the adults and the child in the room. As the child speaks, I imagine the light in the room becoming warmer, as if someone had pulled back a curtain.

Boris tells me about the Committee’s findings. The ruling was unequivocal. The Committee found Switzerland’s decision to expel mother and child in violation of ten articles of the convention. “Not one article. Ten. A clear miscarriage of justice,” he says. The child’s best interest was not respected, the committee stated. The child was never heard. His expulsion would put him at risk. His statelessness was another concern for the committee.

I later search the web for more information. I don’t recall seeing any news on the case. A stateless child and his Syrian mother not allowed to stay with their only family members? It occurs to me that, as a Swiss citizen, these decisions represent me too, in some way. It saddens me. The men and women making these judgements are paid by Swiss taxpayers like me. Are they not held accountable? What reasons did they give for the expulsion? I find the Committee’s decision, in the UN Treaty Body Database, on the Convention of the Rights of the Child’s website, under Jurisprudence.[2]

I download the ruling and read the long, disturbing, list of violations identified by the Committee, among them:

· Switzerland’s decision violates the child’s best interests (Art. 3), to remain with his mother in Switzerland, with his family.

· Disregards the right of the child to be heard in the asylum proceedings (Art. 12). The child was never interviewed.

· Cuts the child from the essential psycho-social support of his extended family in Switzerland in violation of his right to respect for family life (Art. 16);

· Exposes him to inhuman and degrading reception conditions, torture and ill-treatment (Art. 37) ;

· Would deprive him of the specialized care for trauma victims he was receiving, in violation of his right to rehabilitation (Art. 39)

· Disregards his right to respect for family and private life (Art. 16).

On the Swiss government site, it reads that Switzerland signed the convention on the rights of the child, the most ratified Convention in the world, in 1997. While the Federal Administrative Tribunal was rejecting the appeal for a second time, Federal Councillor Ignazio Cassis was celebrating 30 years of the Convention stating, “In terms of human rights policy, Switzerland works in particular for the protection of children in the field of justice[3]”.

I reach out to the State Secretariat for Migration, a laconic sentence comes back, “For reasons of data protection, we cannot comment on individual cases. Thank you for your understanding.”

I recall another point Boris made during our lunch, “the Swiss authorities had plenty of occasions throughout the last three years to have settled the case, granting some protective status to mother and child. They were stubborn about expelling them. The child’s schoolteachers even sent a letter saying that the boy had integrated well in his community here in Switzerland — that he was learning French, obtained excellent grades. They pleaded for him to stay. He had never been schooled before. I mean he’s only ever seen war and exile. Yet he was expelled.”

“So, how much media coverage has the case received?” I ask him.

“None.[4]

The Committee’s decision comes in the form of recommendations. I learn that strictly speaking, they are not binding. The Committee asks Switzerland to: reconsider the expulsion order; re-examine the asylum request in the light of the child’s best interest; assess the child’s risk of remaining stateless; ensure appropriate measures for his rehabilitation, and ensure no further violations such as those incurred here are repeated. Switzerland is asked to inform the Committee on the developments of this case within 180 days, that’s the end of March 2022.

“So, what has happened after the ruling?”

“The family received the news, they were thrilled. I trust the Swiss authorities will adopt the recommendations. It would be a scandal if they don’t, they signed it,” Boris says.

Like Atticus, Boris, does not seek to draw attention to himself. Rather than rest on his laurels, he has moved on to another urgent case, this time involving an Afghan family about to be expelled.

[1] Also expressed by Gandhi, “The true measure of any society can be found in how it treats its most vulnerable members.

[2] Committee on the Rights of the Child CRC/C/88/D/95/2019, September 29th 2021

[3] https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-77165.html

[4] I failed to get this article published in a Swiss paper.

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