AY AND AY-AKGUEL v. SWITZERLAND
Inadmissible
Christos Rozakis
The applicants, Denho Ay and Besne Ay-Akguel, a married couple born in 1931 and 1939, respectively, are Turkish citizens residing in Uzwil in Switzerland. Before the Court they are represented by Mr Klaus Rüst, a legal advisor practising in St. Gallen. The applicants entered Switzerland in 1988 together with their three children and applied for asylum. The first applicant and two of the applicants’ children commenced work, whereupon, based on Section 21a of the Asylum Act (Asylgesetz) in force at the time, they were each obliged to pay, as a surety (Sicherheit) for welfare benefits obtained, 10% of their salary to a special closed account of the Federal Office for Refugees (Bundesamt für Flüchtlinge; henceforth Federal Office). On 5 April 1993 the Federal Office refused the applicants’ request for asylum, though they were permitted provisionally to remain in Switzerland. Upon the applicants’ appeal, the Swiss Asylum Appeals Commission (Asylrekurskommission) ordered the Federal Office on 27 May 1994 to accept the applicants as refugees and to grant them asylum. This, the Federal Office did on 18 July 1994. On 17 March 1994 the Federal Office prepared a final balance (Abrechnung) of the three closed accounts of the applicants and their two children. The Federal Office considered that the amounts of the three accounts totalled 6,986.90 Swiss francs (CHF), whereas the applicants had obtained welfare benefits in the amount of CHF 10,800. As a result, it informed the applicants that no money could be paid back from the account, though they would only be requested to compensate the outstanding amount of CHF 3,813.10 within the limits of the former Section 40 § 2 of the Asylum Act in force at the time. On 4 May 1995 the applicants filed an appeal with the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement, henceforth Federal Department). Therein, and in subsequent submissions, the applicants requested the Federal Office to pay them back the entire amount of the closed surety account. They claimed that their recognition as refugees was declaratory and hence had retroactive character. Thus, their status as refugees extended back to the moment when they entered Switzerland. The law only required a surety from asylum seekers, i.e. persons applying for the status of refugee, but not from refugees themselves. As the applicants had had refugee status from the outset, the amounts on the surety account should be paid out to them. The applicants also complained, inter alia, of procedural errors and that they had been discriminated against as foreigners. On 22 August 1995 the Federal Office prepared a new, amended balance of the three closed accounts of the applicants. It considered that the applicants’ children had, at the relevant time, not yet been of age for which reason they were not obliged to pay back the welfare benefits obtained, and they would receive the amounts paid into their closed accounts. In respect of the first applicant, the Federal Office considered that his account contained CHF 5,023.40 and that, after deduction of welfare benefits amounting to CHF 7,200, there remained a negative balance of CHF 2,176.60. The applicants would not, however, be obliged to pay back this amount according to Section 40 § 2 of the Asylum Act. On 20 September 1995 the Federal Office confirmed that the remaining debt (Restschuld) for the applicants arising from the welfare benefits amounted to CHF 2,176.60, though this amount would not be collected as long as the applicants had no means and the payment appeared unreasonable. The applicants’ appeal of 4 May 1995 was dismissed by the Federal Department on 19 November 1998. The decision noted that the applicants were contesting, not a particular amount, but the obligation in principle to pay back the welfare benefits out of the closed account, alleging that their recognition as refugees had retroactive effect. However, the rights under the Asylum Act only applied upon recognition of a person as a refugee. The specific obligation for persons applying for asylum to provide for a surety was not affected by the subsequent decision to award refugee status to a person. The decision continued: “(I)t must be emphasised that the lower authority was entitled, regardless of whether the status of asylum was granted, to deduct from the [first] applicant’s surety account a global sum in respect of the welfare benefits obtained both by him and his wife during the asylum proceedings. It will not depend on the applicants’ economic situation whether or not it is admissible to deduct this amount. For this reason, the lower authority did not have to undertake any investigations in this respect. The applicants have not proved lower welfare expenses and indeed do not contest the amounts to be deducted. As a result, the contested decision is lawful and the complaint must be dismissed ...” The Asylum Act in force at the relevant time provided in Sections 20a § 1 and 37 that both refugees and persons applying for such a status, were entitled to welfare benefits if they could not afford to pay for their own subsistence. According to Section 40 § 2: “if the recipient of welfare benefits subsequently obtains means which secure to him and his family an adequate subsistence, he will have to pay back the benefits to the extent that this is reasonable.” Section 21a §1 specifically concerned persons applying for the status of refugee. These persons were obliged, in addition, to provide a surety for future welfare costs. The percentage of the person’s salary to be paid would be decided by the competent cantonal authority. In practice, a surety bank account was opened, and the employer of the person concerned would directly transfer the contributions to this account. In respect of the closing of the account, Section 41 of the Asylum Act Ordinance no. 2, Asylverordnung, in force at the time) provided as follows: 1. Once the asylum proceedings have been concluded and the applicant’s residence situation in Switzerland has been settled by means of a residence permit or a provisional stay, ... the Federal Office [for Refugees] shall order the transfer to the Confederation of the amounts to be paid back for social security and implementation. 2. The Office shall furthermore order the final balance (Schlussabrechnung) and the transfer of any credit to an account mentioned by the applicant. The final balance shall be transmitted to the applicant subject to § 3. 3. If the residence situation of an applicant, who is not a refugee, has been settled by means of a provisional stay, the surety account will remain open.”