CAT/C/71/D/900/2018

order to conscript him into the Eritrean army; they had found his name on a list of school
dropouts that had been provided to the army by the school. The first time they came, the
complainant was not at home; the second time, he managed to hide from them outside the
house. The soldiers then issued a summons ordering him to go to the school, accompanied
by his parents. According to the complainant, the soldiers intended to round up a group of
young people in order to send them to the military camp in Sawa. Fearing that he would be
conscripted into the army, the complainant decided to leave the country. He travelled illegally
to Libya, via Ethiopia and the Sudan. He then boarded a boat for Italy.
2.2
On 9 September 2015, the complainant arrived in Switzerland and filed an asylum
application. Because he had left Eritrea illegally, his mother had had to pay a fine to the
authorities in order to avoid being sent to prison in his place.1 The complainant was given
two hearings by the Swiss authorities, on 8 October 2015 and 20 April 2017, during which
he stated that he had been born in Wilisho, he belonged to the Saho ethnic group, he was a
Muslim and he had left school at the age of 16 and a half years.
2.3
On 8 October 2015, the State Secretariat for Migration informed the migration
authority of the Canton of Geneva of the arrival of a minor asylum seeker who was
unaccompanied (that is, not assisted by a parent or guardian) and invited the authority to take
the appropriate measures. By an ordinance of 28 October 2015, the Court for Adult and Child
Protection of the Canton of Geneva appointed a guardian (legal representative) to represent
and assist the complainant until he reached the age of majority on 1 August 2016.
2.4
On 20 April 2017, more than 18 months after his initial hearing on 8 October 2015,
the complainant was given a full hearing regarding his grounds for seeking asylum. Since he
had already reached the age of majority, he could no longer be assisted by his guardian and
was therefore unable to prepare properly for the hearing. Furthermore, during both hearings,
the interpreter spoke in Tigrinya, a language that the complainant had learned only at school,
whereas his mother tongue is Saho. The complainant was not able to raise this problem at the
time, since he lacked the assistance of a legal representative.
2.5
On 16 January 2018, the State Secretariat for Migration rejected the complainant’s
application for asylum, mainly because it considered that his fear of being enlisted in the
army was not based on anything concrete. In particular, the fact that he learned from his
mother – that is, from a third party – that soldiers were looking for him was, according to the
relevant case law, “insufficient” evidence of a well-founded fear of persecution. Moreover,
his account contained chronological discrepancies between the date on which he dropped out
of school and the date of the alleged round-ups; the complainant had never had direct contact
with the military authorities of his country, and a merely theoretical fear of having to perform
military service was not intense enough to constitute a well-founded fear of persecution. His
description of being summoned by the military authorities was not plausible. Taken by itself,
the fact that he left the country illegally as a minor could not (or no longer) be considered to
justify a fear of serious harm, since there was no reason to believe that he might be considered
a draft evader by the Eritrean authorities. The complainant had therefore failed to demonstrate
that he faced a real and specific risk of being subjected to treatment that is prohibited by
article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights).
2.6
On 14 February 2018, the complainant lodged an appeal with the Federal
Administrative Court against the decision of the State Secretariat for Migration. Essentially,
he argued that the State Secretariat had not given him the opportunity to explain the
inconsistencies in his account. These had arisen because he had forgotten certain details in
the time that had elapsed between the events and his hearings, the first of which had,
moreover, taken place when he was still a minor. He also argued that the State Secretariat
should have examined further the fact that soldiers had come looking for him at his home.
2.7
On 21 February 2018, the Federal Administrative Court granted his application for
legal assistance and appointed the complainant’s chosen lawyer as his legal representative.
In a decision of 12 October 2018, the Court confirmed the decision of 16 January 2018 of the
1

2

European Asylum Support Office, Country of Origin Information Report: Eritrea – National Service
and Illegal Exit (November 2016), p. 19.
GE.21-13784

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