“It doesn’t seem to matter whether people are captured or killed”: Afghan victims of persecution risk their lives awaiting Swiss justice

Sabine Haupt is a writer and professor of literature at the University of Freiburg. But two years ago she unexpectedly became a flight aid. In the summer of 2021, the Taliban seized power in Afghanistan. Amid this chaos, an Afghan author sent an urgent appeal for help to the Swiss-German Pen Center.

The association campaigns for persecuted and imprisoned authors and for freedom of expression. On the board: Sabine Haupt. With the help of the State Secretariat for Migration (SEM), she managed to secure a humanitarian visa for the author and his wife, a prosecutor, and brought them to safety in Switzerland.

As the situation in Afghanistan continued to deteriorate, Haupt wanted to allow more people to escape. And she succeeded: in November 2022, 43 people from Afghanistan – mainly endangered intellectuals and their families – were able to enter the country and apply for asylum here.

This is by no means self-evident, as humanitarian visas are generally issued in a very restrictive manner. Last year, according to SEM figures, 142 visas were approved out of 3,720 applications; this year, 34 visas had been approved out of 836 applications by the end of August. That’s about four percent each.

The Swiss Red Cross (SRK) criticizes the extremely restrictive approach. The aid organization continued to run a humanitarian visa advisory service until the end of 2021. But as the requirements became increasingly strict – for example, the person at risk now had to have a close connection with Switzerland – the SRK eventually stopped this service in order to deploy the resources elsewhere.

The chances of success had become so low that they simply no longer justified the effort. However, the SRC still sees the instrument itself as central – after all, it is one of the few legal avenues for access to international protection.

No legal deadlines

Sabine Haupt also encountered bureaucratic boundaries in her commitment. Because she had actually applied for visas for even more people. However, the SEM has rejected some of them. “To this day I still don’t understand the criteria on which these decisions are made. Because the risk situation was clear and virtually identical in all cases.

Therefore, in September 2022, with the help of the organization AsyLex, she decided to refer seven of the rejected cases to the next authority, the Federal Administrative Court.

In the media you could see how human rights in Afghanistan were going up in smoke. But the decisions of the local court took a long time. Because there is no Swiss embassy in Afghanistan, people had to flee to Pakistan or Iran to apply for visas – and there they stayed, even though some of their permits had expired and were at risk of deportation. It took eleven months for the first verdict.

To date, the Federal Administrative Court has definitively dismissed two complaints and upheld three, two of which have been referred back to the SEM and are still pending there. There are still two cases open. These people are still waiting for Swiss justice in Pakistan or Iran.

The court does not provide a clear answer as to why it takes so long. Because there are a large number of complaints about immigration law, prioritization is taking place, says Rocco Maglio, media spokesperson for the Federal Administrative Court. For example, in Dublin cases – i.e. clarifications about which state in the Dublin area (EU, Switzerland, Norway, Iceland and Liechtenstein) is responsible for an asylum application – a period of five days applies.

Humanitarian visas are also given priority. However, there are no legal deadlines for this, neither for the processing of applications at the embassies or at the SEM, nor for the procedure in court.

Court sharply criticizes SEM

“Given the urgency, the long procedures are shocking and untenable,” said Michel Brülhart, head of legal advice center AsyLex. The organization represents numerous cases pending before the Federal Administrative Court. Since it’s taking so long for everyone, AsyLex filed a regulatory notice in federal court claiming structural defects. The condition for granting a humanitarian visa is that there is an immediate and concrete danger to life and limb. It is therefore absurd and incomprehensible that the procedure has taken so long.

But the Federal Court dismissed the surveillance complaint in October, saying there was nothing wrong with the Federal Administrative Court’s approach. Media spokesperson Maglio says: “This shows unequivocally: the court takes its job seriously.”

Whether this applies to all authorities involved can at least be doubted, as shown by a recent judgment on one of the cases of the Sabine Haupt rescue operation. A former prosecutor, who also had to investigate terrorist actions by the Taliban, fled to Pakistan with his family in 2021. Because he and his family were threatened with forced deportation to Afghanistan, the Federal Administrative Court ruled that he should be granted a humanitarian visa.

It sharply criticized the Secretariat of State for Migration, which had previously rejected the application: the risk of forced return was significant, and the previous authority (namely the SEM) had “not assessed this on the facts”. The SEM does not comment on the case. The verdict was noted and analyzed.

In October 2023, the man and his family were finally able to enter Switzerland. A great satisfaction for Sabine Haupt. But one disadvantage remains: if the SEM had immediately made the same decision or if the court had at least decided more quickly, so many donations would not have been necessary to keep the family afloat in Pakistan for 19 months.