CRC/C/85/D/56/2018
that sending the mother and children back to their country of origin or transferring them to
another country or another Swiss canton would seriously harm their mental and physical
development.
2.6
Under the second subparagraph of article 19 (2) of Regulation (EU) No. 604/2013 of
the European Parliament and of the Council of 26 June 2013 establishing the criteria and
mechanisms for determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country national or a
stateless person (Dublin III Regulation), any asylum application lodged after the asylum
seeker has actually left the country gives rise to a new procedure for determining the
Member State responsible for processing the application. On 5 July 2018, the author
requested the State Secretariat for Migration to apply the sovereignty clause mentioned in
article 17 (1) of the Dublin III Regulation and to declare itself competent to examine her
asylum application on the basis that the case involved a vulnerable family that had already
previously fled their country of origin and experienced the subsequent arrest of the father,
that the children were integrated and attending school in Ticino, that the author was in a
state of depression and that transferring the family to Italy would be detrimental to the
rights and best interests of the children. On 13 June 2018, the State Secretariat for
Migration submitted a request to Italy to take charge of the author and her children. After
an initial refusal, the Italian authorities agreed to take charge of the family on 19 July
2018.1
2.7
On 20 July 2018, the State Secretariat for Migration decided not to consider the case
and ordered the removal of the author and her children to Italy. The decision stated that E.A.
and U.A. “have no particular ties to Switzerland, where they lived for only eight months
before returning to their country of origin in 2017 and where they have currently been
staying since 25 May 2018”. The State Secretariat noted that the Italian authorities had
agreed to take charge of the family in accordance with the circular of 8 June 2015
concerning the Protection System for Refugees and Asylum Seekers (SPRAR). With
respect to the author’s allegations regarding her depression, the State Secretariat noted that
she was receiving medical treatment. The State Secretariat indicated that the Italian medical
system would be able to provide treatment for illnesses of a psychiatric nature and that the
country was obliged, under article 19 (1) of Directive 2013/33/EU of the European
Parliament and of the Council of 26 June 2013 laying down standards for the reception of
applicants for international protection, to provide asylum seekers with essential treatment of
illnesses and of serious mental disorders.
2.8
The complainant filed an appeal against the State Secretariat for Migration’s
decision to the Swiss Federal Administrative Court on 31 July 2018. The Court rejected her
appeal on 8 August 2018, noting that the author and her children had been recognized by
Italy as a family nucleus. With regard to the report of 31 July 2018, the Court ruled that
there were no concrete and substantiated indications in the procedural documents that the
persons concerned would be unable to travel or that the alleged health problems were so
serious that the family’s transfer to Italy would be contrary to the requirements of the
European Court of Human Rights. The Federal Court pointed out that the alleged need for
psychiatric treatment was not supported by any concrete evidence and that such treatment
could, if necessary, be provided in Italy. With regard to the author’s argument that the State
party should apply the sovereignty clause set forth in article 17 (1) of the Dublin III
Regulation in order not to prejudice the best interests of the children, the Court noted that it
could not substitute its assessment of the facts for that of the State Secretariat for Migration
and that its power of review was limited to verifying whether the assessment by the State
Secretariat had been carried out in accordance with objective and transparent criteria and
had not been arbitrary.
2.9
Even though the Swiss authorities were informed that E.A. and U.A. had contracted
chickenpox and the risk of contagion had been reported by a doctor, 2 at 2 a.m. on 12
1
2
GE.20-14363
Italy initially rejected the State Secretariat for Migration’s request for lack of evidence.
The author submitted two medical certificates, dated 7 September 2018, stating that E.A. and U.A.
were in good health but, according to third-party statements, might have contracted chickenpox
between 23 and 26 August 2018.
3