Upholding Unsuccessful Asylum Seekers’ Right to Family Life

In two recent judgments against Switzerland, the Court examined whether a five-year separation of unsuccessful asylum-seeker couples, pending their deportation, was contrary to Article 8 of the Convention.

The applicants, two Ethiopian nationals, were denied asylum in Switzerland and ordered to be sent back to their country of origin. They remained however longer in Switzerland since the Ethiopian authorities prevented their return. Over the course of their prolonged stay in Switzerland, they got married. Their husbands, also Ethiopian unsuccessful asylum seekers, were assigned to a different Canton from that of the applicants. The latter alleged they had been prevented from living with their husbands as a result of the refusal to reassign them to the same Canton.

The Court observed that leading a life as a couple was one of the essential elements of the right to respect for family life and that the refusal to assign the applicants to the same Canton as their husbands amounted to an interference with this right. The interference was prescribed by law (Federal Asylum Act). It furthermore pursued the equitable assignment of asylum seekers among the Cantons which could fall within the “economic well-being of the country.” But, has the Swiss government struck a fair balance between the individual interests and its own?

The Court reasoned that the Swiss Government did not strike a fair balance between the individual interests of the applicants and their husbands, on the one hand, and its own interest in distributing asylum seekers in an equitable manner among the different Cantons, on the other. It noted that the applicants were prevented from living with their husbands for more than five years. Assigning the applicants to the Canton where their husbands were placed would have not had much incidence on the number of foreigners assigned to such Canton. Nor would it have altered the equitable distribution of asylum seekers. In the Court’s view, the applicants’ private interests carried much more weight than the advantages for the State. Even though assigning applicants to a different Canton represented an administrative burden and additional costs, this could not take precedence over the applicants’ interest in living with their spouses.

What is perhaps most noteworthy about these cases is the Swiss government’s denial of an interference with the applicants’ right to family life. At the domestic level, the Swiss authorities had argued that the applicants could not benefit from the protection under Article 8 since they did not enjoy the right to obtain or extend permanent residence in Switzerland but, on the contrary, were already denied asylum and awaiting the enforcement of deportation orders. This argument gained prominence before the Court: “les autorités helvétiques n’ont pas à garantir le développement d’une vie familiale optimale en Suisse à des personnes dont les procédures d’asile sont closes et qui font l’objet de décisions exécutoires de renvoi.” (Agraw, para. 39)

The Court, luckily, did not accept this argument. It recalled that States do not have a general obligation to comply with the choice of joint residence elected by married couples or to allow foreign couples to settle in the country. However, the Court noted that the applicants were still in Switzerland at the time of their marriage and request of Canton reassignment and that their return to Ethiopia was not foreseeable in the near future. The Court then held that, for the purposes of Article 1 of the Convention, the applicants, whose involuntary prolonged stay in Switzerland was due to the enforcement failure of the deportation orders, came within the jurisdiction of Switzerland. The Swiss government was therefore obliged to assume its responsibility under the Convention. No doubt this is one of those cases in which good reasoning and good outcome coincide nicely.