The applicant A., a Nigerian national from Benin City, arrived in Switzerland in October 2003 and submitted a first asylum request in the same year. In her request, she claimed to have lost her parents at a very young age and subsequently lived with her uncle who abused and mistreated her for years and eventually forced her to marry a much older man. When A. asked for help at a local church, the priest organized her travel to Lagos where she was placed with a group that claimed to be associated with the "Red Cross". It is through this group that the applicant was brought to Switzerland.
In 2004, the applicant's first asylum request was denied. In 2013, the applicant filed a request to reconsider her plea for asylum with the Swiss Secretariat of Migration, as it was only then discovered that there were indications that she could have been a victim of human trafficking. She showed psychological and physical signs of trauma and abuse, including scars that were likely to stem from a "JuJu ritual" – a traditional practice often used to coerce especially Nigerian women into exploitation. A request to reconsider her plea for asylum was initially rejected by the Swiss Secretariat of Migration which argued that there was not enough evidence to demonstrate that the applicant was indeed a victim of human trafficking. It is against this decision that the applicant filed an appeal with the Federal Administrative Court.
Suisse
NigériaIn a comprehensive judgment, the Court analyzed modus operandi, means and acts applied by human traffickers to coerce Nigerian women into exploitation for the purpose of prostitution and drug trade in Europe.
Further, the court highlighted the international legal framework of human trafficking as well as the jurisprudence of the European Court of Human Rights in that matter (most prominently by referring to Rantsev vs. Cyprus and Russia). It described in detail the State’s various public international law obligations, including:
1. Human trafficking falls within the scope of application of Art. 4 ECHR and serves as a lex specialis to Art. 3 ECHR taking priority of the provisions relating to torture, inhuman and degrading treatment.
2. States have the obligation to maintain a legal order that actively prevents (and not fosters) human trafficking and must criminally pursue all persons suspected of human trafficking. Especially national migration and labor laws must not be construed to serve as an incentive to commit human trafficking.
3. If there is a suspicion of human trafficking, State agencies must launch investigations ex officio and not depend on the victim to submit a request.
4. States have the obligation to collaborate to combat this transnational crime by collecting and sharing evidence, and to submit and reply swiftly to mutual legal assistance requests.
5. If a person is a victim of human trafficking or is in a real and immediate danger of becoming a victim of human trafficking, individual protection measures must be ordered.
6. A person cannot be deported if an immediate risk of renewed recruitment into prostitution or of retaliatory measures has been credibly demonstrated.
7. On the basis of the Council of Europe Convention against Human Trafficking, State parties have the obligation to identify victims of trafficking.
Given that the applicant showed several credible indications that she was indeed a victim of human trafficking, the Federal Administrative Tribunal granted the applicant’s appeal and ordered the State Secretariat to re-assess her asylum request.
Federal Administrative Court (Bundesverwaltungsgericht)
Related to Rantsev v. Cyprus and Russia:
https://sherloc.unodc.org/cld/case-law-doc/traffickingpersonscrimetype/_irb/2010/rantsev_v._cyprus_and_russia.html?lng=en&tmpl=sherloc
The Judgment offers a comprehensive overview of the legal obligations incumbent on States in the matter of human trafficking, especially regarding Nigerian women that are deceived/coerced into sexual exploitation and drug trafficking in Europe and subsequently submit an asylum request. The court highlights the inter-play between the UN TIP Protocol, the Council of Europe Convention on Human Trafficking, the European Convention of Human Rights, and the jurisprudence of the European Court of Human Rights as a basis for international obligations.