CRC/C/85/D/56/2018
airport showed a photo to E.A., who was crying in fear during the discussion between his
mother and the police. The State party’s assertion that the children became afraid when they
saw their mother’s reaction must be qualified in the sense that the children were worried
that their mother might be taken away from them because of her refusal to board the plane.
The psychological pressure they were under and the fear led E.A. to tell his mother to get
back on the plane. The author contests the entire part of the State party’s observations
concerning her decision to choose to return to Ticino by train.
5.9
The author argues that the national authorities have disregarded article 2 (2) of the
Convention by failing to take into account E.A. and U.A.’s vulnerability and by applying
the Dublin III Regulation in its most restrictive form, namely not applying the sovereignty
clause. The author argues that the State Secretariat for Migration acted in a discriminatory
manner in its decision not to consider her case by generalizing the issue instead of
considering the specific case at hand.
5.10 Referring to articles 3 and 22 of the Convention, the author states that the Swiss
authorities did not take into account the best interests of E.A. and U.A., since they did not
take into consideration the trauma experienced and the ties with the persons they had met in
Ticino. The author contests the presumption by the Federal Administrative Court that there
are no systemic flaws in the asylum procedure and reception conditions in Italy. The mere
presumption that the Italian authorities consider asylum seekers as a family nucleus and
guarantee their unity is a minimum guarantee that does not take into account all of E.A. and
U.A.’s interests. In the appeal against the removal order of the State Secretariat for
Migration, the author argued that Italy had systemic shortcomings that would prevent the
real protection of her children. The author contests the State party’s assertion that Italy can
provide essential treatment for serious mental illness and problems. The fact that the
national authorities relied on the report of 31 July 2018 to assert that the author and her
children were not suffering from serious problems and that they could be transferred to
Italy shows that they did not in any way weigh up the interests at stake. The author disputes
that her family could be hosted in Italy under the Protection System for Refugees and
Asylum Seekers. The Italian Government passed a law that disrupted the System: Italian
television keeps showing homeless families in the streets. As noted in the Federal
Administrative Court appeals, projects under the Protection System for Refugees and
Asylum Seekers, while perfect on paper, are a failure when it comes to their
implementation. In 2018, the Ministry of the Interior promulgated a decree-law called
decreto sicurezza which repealed humanitarian protection. The decree resulted in 60,000
foreign nationals being removed from the Protection System for Refugees and Asylum
Seekers. The author claims that the violation of article 3 of the Convention is due to the fact
that the Swiss authorities did not consider that removal to Italy would have traumatized E.A.
and U.A. to the extent that they would have lost their points of reference and important
personal relationships and would have had to undergo a further change. The author contests
the claim that her children did not form any important relationships during the 10 months
E.A. went to school in Switzerland. Her decision to return to Switzerland was made solely
on the basis of the points of reference the family had established, such as her network of
friends, school acquaintances and psychological support. The authorities did not take into
account the author’s statements, the testimonies of the acquaintances of the author and her
children or, most importantly, the emotions and feelings of the two children, who thought
they had found in Switzerland a place of stability that would give them a measure of
serenity. The author claims that it was the smuggler and not her who had chosen to obtain
the visas from the Italian consulate in Baku. She stresses that the risk of a violation of the
Convention in the event of removal does not only concern the way her children would be
received in Italy, but also the trauma they would suffer by losing their points of reference
again.
5.11 The failure of the authorities to take account of the medical reports and the stress,
fear and anxiety of E.A. and U.A. because of all that they had experienced constitutes a
denial of protection and is detrimental to their development within the meaning of article 6
(2) of the Convention.
5.12 The author argues that the alleged violation of article 12 of the Convention does not
only concern the fact that E.A. and U.A. were not heard by the State Secretariat for
GE.20-14363
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