The applicant, a minor from Somalia at the time of application and currently an adult, belonging to the Bantu clan minority requested international protection in Switzerland on 7 August 2021. The applicant asserted that Al-Shabaab attempted to forcibly recruit him and killed his brother in the process. He held that he had been tortured and that because of this he fears for his life, claiming that Al-Shabaab would kill him if he returned to Somalia. He also asserted that he faced discrimination in Somalia due to his Bantu clan membership.

On 9 December 2021, the State Secretariat for Migration (SEM) rejected the application and ordered his removal from Switzerland. The SEM did not conduct a credibility assessment because it considered that the motives presented did not constitute grounds for persecution under the Refugee Convention. 

On 6 January 2022 the applicant filed an appeal before the Federal Administrative Court (FAC), requesting recognition as a refugee. The applicant argued that he belonged to an ethnic minority who was discriminated against by the Somali society. Given this lower social status, he claimed to be disproportionately affected by acts of violence, expropriation, looting and famine, and that his forced recruitment was directly linked to this discrimination. Finally, he argued that the harassment he had suffered had caused him unbearable psychological pressure, and that his situation of danger had intensified after the death of his parents, as his family was no longer able to protect him.

The SEM held that the Al-Shabaab persecution affected all the population equally and was not based on a motive listed in Article 3 of the Asylum Act. Moreover, it argued that the applicant had not claimed that the recruitment was linked to his membership to a minority clan. Consequently, it argued that the forced recruitment of the applicant was not targeted and that any retaliatory measures by Al-Shabaab were to be viewed as criminal acts and not motives of persecution.

The Federal Administrative Court found that the SEM’s examination of the facts was incomplete and that the forced recruitment of minors and ethnicity minority-based discrimination may constitute persecution. Consequently, it returned the case to the SEM for further examination.

First, the court held that the five motives for persecution mentioned in Article 1 of the Asylum Act were not to be understood in the strictly literal sense because they were construed to mean that persecution has occurred or there is a risk to occur due to an external or internal characteristic that is inextricably linked to the person or personality of the victim.

The FAC then recalled that the forced recruitment of minors was prohibited under international humanitarian law, specifically the recruitment of children under 15 was considered a war crime that could be prosecuted in Switzerland, even if committed abroad, based on the principle of universality. Moreover, according to its previous case law, the court held that the recruitment of children under the age of 18 into a state army or non-state armed group may constitute persecution relevant to asylum (Case E-1144/2018 of 29 June 2020 and E-5072/2018 of 17 December 2020). The court mentioned that this approach was also supported by legal doctrine and by the UNHCR.

Consequently, the FAC held that the SEM’s view that the applicant was not subjected to persecution was not entirely convincing. In particular, the SEM's argument that the applicant had not previously linked forced recruitment to his ethnic minority status fell short in this case. Based on the applicant's submissions, it could not be ruled out a priori that he was threatened with forced recruitment due to his minority clan membership – in addition to his age at the time (15), his gender, and his place of residence – especially since he has consistently pointed out that he had been discriminated against for belonging to a lower clan in the village.

Due to the applicant’s potentially relevant allegations, the court considered that the SEM should have further examined all factual elements and not waived a credibility assessment. Specifically, it should have assessed whether the applicant was expected to be re-recruited (now as an adult) and if he would be considered as hostile to Al-Shabaab. 

The appeal was accepted, the contested decision was annulled, and the case was returned to the SEM for further proceedings.