The authors of the communication are A.J.A., born on 8 February 1969, and S.A.J., born on 19 December 1973, who are nationals of Sri Lanka living in Switzerland. They are submitting the communication on behalf of their son S.A.J., born on 15 September 2010, and their daughter S.A.J., born on 15 October 2014, both of Sri Lankan nationality. The authors claim that their expulsion to Sri Lanka would constitute a violation by the State party of their children’s rights under articles 3, 6 (2), 9, 12, 27, 28 and 37 of the Convention owing to the risk they face of being subjected to inhuman treatment in Sri Lanka, including homelessness, limited or non-existent medical and social support, inappropriate education, separation from their family and removal from the only environment they have ever known, and to the failure of the State party to ensure respect for the best interests of the child and to hear the children’s views throughout the authors’ asylum procedure. The authors are represented by counsel, Lucas Manz and Joëlle Spahni. The Optional Protocol entered into force for the State party on 24 July 2017.
The authors, who are Tamils from Sri Lanka, have lived in Switzerland since August 2010, having fled political persecution resulting from A.J.A.’s involvement with the Liberation Tigers of Tamil Eelam (LTTE). In 2009, A.J.A. was arrested by the People’s Liberation Organization of Tamil Eelam but managed to escape and flee to Switzerland with his family. Their children, who were born in Switzerland in 2010 and 2014, have lived in the country since birth.
The authors’ first asylum application in Switzerland was submitted on 26 August 2010 and was rejected on 18 December 2012 by the Federal Office for Migration. The same day, the Federal Administrative Court upheld the rejection decision. After a stay in France, the authors returned to Switzerland in 2014 and submitted a new asylum application on 28 May 2014, which the State Secretariat for Migration4 rejected on 22 January 2015; this decision was also upheld by the Federal Administrative Court on 29 March 2017. The authors sought other remedies on 9 November 2018 and 22 March 2019, without success.
- The Federal Office for Migration became the State Secretariat for Migration on 1 January 2015. ↩
On 26 July 2019, the children’s older brother, who was born in Sri Lanka, obtained a residency permit in Switzerland. A third asylum application was submitted on 10 December 2019, citing political changes in Sri Lanka, but was rejected by the State Secretariat for Migration on 13 February 2020 and by the Federal Administrative Court on 13 May 2020. On 27 September 2021, the authors applied for a residency permit on grounds of severe personal distress, but the application was denied on 4 November 2021 by the migration authorities of the Canton of Bern, which set 17 January 2022 as the deadline for the family’s voluntary return to their country of origin. The authors note that A.J.A. suffers from post-traumatic stress disorder and depression requiring treatment and claim that the human rights situation in Sri Lanka has deteriorated since 2020, especially for Tamils, in particular those with ties to the Liberation Tigers of Tamil Eelam.
In accordance with article 6 of the Optional Protocol, on 4 April 2022, the Committee, through its Working Group on Communications, requested the State party to adopt interim measures by suspending the expulsion of the authors and their two children to Sri Lanka pending the consideration of their case by the Committee.
On 17 October 2022, the State party submitted its observations on the admissibility and merits of the communication. It was of the view that the authors’ claims were manifestly unfounded and that the communication, having been submitted so late, was inadmissible ratione temporis.
On 18 November 2022, the authors received a response to their request for a review of their asylum application of 15 September 2022, in which the State Secretariat for Migration determined that their return to Sri Lanka was unreasonable and granted them a temporary residency permit in Switzerland.
On 28 February 2023, the State party requested that the Committee suspend its consideration of the communication, citing the principle of subsidiarity, as the authors’ petition had become moot; the authors confirmed this point on 28 March 2023.
At its meeting of 20 September 2023, the Committee, having considered that the children no longer risked being returned to Sri Lanka and that the matter was therefore moot, decided to discontinue its consideration of communication No. 181/2022 in accordance with rule 26 of its rules of procedure under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.