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Jason Dzubow on Political Asylum

European Court Fines Switzerland for Violating Asylum Seekers' Rights

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Last week, the European Court for Human Rights fined Switzerland for denying the requests of two Ethiopian asylum seekers to live with their husbands.

The applicants-Ms. Mengesha Kimfe and Ms. Agraw-and their husbands entered Switzerland illegally on different dates between 1994 and 1998 and sought asylum there.  In accordance with the Federal Asylum Act, which provides for asylum-seekers to be assigned to live in a particular canton (region), the Federal Office for Refugees assigned the applicants and their husbands to different cantons.  The couples were not married at the time.

It's a tough job keeping those feisty European states in line.

After their applications for asylum had all been refused, the asylum seekers were ordered returned to Ethiopia and placed in reception centers for refugees pending deportation.  They remained in Switzerland, however, because the Ethiopian authorities prevented their return.

The applicants got married in 2002 and 2003 respectively, but the authorities refused their requests to be assigned to the same cantons on the ground that "unsuccessful asylum seekers in respect of whom the departure date initially fixed for leaving Switzerland had elapsed [could] not be assigned to a different Canton." 

After her marriage, Mengesha Kimfe mainly lived with her husband, illegally.  After being summoned to the police station, she was immediately taken back to her assigned canton, handcuffed.  Her application for family reunion was initially refused and subsequently granted in 2008, when she was issued a residence permit to live in the same canton as her husband.  As for Ms. Agraw, in 2005, she gave birth to a child, who lived with her, separated from his father.  Her application for a residence permit for her husband's canton was finally granted in 2008 on the grounds of family unity.

The two women brought their complaints to the European Court of Human Rights in 2005 and 2006 respectively.  They did not contest their deportation.  Rather, they claimed that the Swiss government violated their rights by refusing to allow them to cohabitate as married couples.  The Court observed that the possibility of leading a life as a couple was one of the essential elements of the "right to respect for family life," as protected under the European Convention on Human Rights.  The Court noted that the applicants had been prevented from constructing a family life outside Swiss territory because the Ethiopian authorities refused to allow them to repatriate.  Finally, the Court weighed the public and private interests (i.e., the Swiss right to assign asylum seekers to different cantons vs. the couples' right to live together), and found that the private right outweighed the state interest.  Under Article 8 of the Convention (the right to respect for private and family life), the Court fined Switzerland 5,846 Euros in Ms. Mengesha Kimfe's case and 5,526 Euros in Ms. Agraw's case.

While a supra-national court is vital in countries where the rule of law is weak, it's hard to imagine the United States ever submitting to international review of its legal decisions.  I for one trust our own courts more than I trust most international bodies in such matters.  Theoretically, though, the idea of enforcing international norms using legal processes is quite attractive.  The idea, of course, is to bring international courts up to (at least) the level of American courts.  If that happens, it will be easier to make the argument for international review in cases such as the one here.  I just don't expect that to happen anytime soon.

The European Court's press release and links to its decisions (in French only) are available here.

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  1. Honza Prchal's Avatar
    Thanks for posting this. Very interesting.
    The Swiss are notorious for their coolness to immigrants. One can be the second generation born in-country and still be "that foreigner" to one's neighbors in many parts of the country.
    US courts catch a lot of flak in part because of how open they are and some parts of the EU/human rights aparaat are quite helpful in opening the old world up to additional scrutiny.
    A perverse side effect is that with the improved conditions and freedoms, the countries involved come in for more criticism. It's still worth it, however.
  2. Jason Dzubow's Avatar
    Thanks for your comment. I find it impressive that the Swiss court (and people) are willing to accept criticism from the EU. I am afraid that for whatever reason, we are unwilling to take constructive criticism very well in the U.S.
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