In general, there is no so-called accelerated procedure foreseen in Swiss law, but in January 2014, a pilot project started, which is called “Testphase”. It is a pilot project for accelerated procedures, where every step of the asylum process will take place in the same area. For this project, a special ordinance1 entered into force. The asylum seekers who enter this special procedure are chosen at random when they make their application at a federal reception and processing centre. Those who are chosen are then transferred to the test centre in Zurich.
In this procedure, every asylum seeker will be supported free of charge by a legal representative who takes part in the whole procedure. This support ends at the earliest after the SEM takes the first decision, if the legal representative decides that he or she does not see a chance of winning an appeal.
Once the asylum application is made, the preparatory phase starts, the SEM records the asylum seekers' personal details and normally takes their fingerprints and photographs. It may collect additional biometric data, prepare reports on a person's age, verify evidence and travel and identity documents and make enquiries specific to origin and identity. This phase shall last no longer than 3 weeks. After this, the accelerated procedure itself will take place, it shall last between 8 and 10 working days, while in certain cases, the period can be extended for a few days. If a decision cannot be made in this time frame, the person will be transferred to a canton and the application will be processed in the regular procedure. These time limits are respected in practice.
The SEM is also responsible for decisions at first instance in the accelerated procedure. Inside the test phase, very clear (positive and negative) cases will be decided in the accelerated procedure, as well as inadmissibility decisions.
Until now there is only one centre that applies the test procedure, namely the test centre in Zurich. This procedure may be extended to another test centre in the French-speaking part of Switzerland in the coming years. In addition, the whole Swiss asylum system will be restructured similarly as in the test centre in Zurich. The Swiss parliament approved the new asylum law on 25 September 2015,2 and the people approved it in a referendum on 5 June 2016.3 The amendment is not expected to enter into force before 2019.
An evaluation of the test phase showed that on average, the asylum procedure could be accelerated by 39%. Furthermore, the provision of legal advice and legal representation supports fair and correct procedures, which has a positive effect on the quality of decisions. It also helps improve acceptance of the decisions by the asylum seekers. The appeal rate was 33% lower than in the ordinary procedure.4
There exist also other procedures which are handled in an expedited manner. The airport procedure is described in the Border Procedure.
Dublin procedures have a time limit of 5 working days for an appeal; the Dublin procedure is described in the section on Dublin. The same time frame for appeals is applied for all inadmissibility decisions.5 Those decisions also have to be made within 5 working days of the application being filed or after the Dublin Member State concerned has agreed to the transfer request,6 although in practice, these time limits are rarely respected. See also the section on the Admissibility Procedure.
If a person comes from a safe country of origin, the request will not be dismissed, but the application shall be rejected without further investigations.7 In those cases, the time limit for an appeal is also 5 working days.8
There is always at least one interview, in the accelerated procedure as well as in the regular procedure. In the accelerated procedure it is also the SEM conducting the interviews. Whether or not there is a second interview with a representation of the authorised charitable organisations present depends on whether or not inadmissibility grounds or other grounds apply (see sections on Regular Procedure: Personal Interview, Dublin: Personal Interview and Admissibility Procedure: Personal Interview).
In the accelerated procedure within the test phase, a legal representative is always present in the interviews. On the other hand, no representation of the authorised charitable organisations (independent observer) is present. Apart from this, there are no differences in the accelerated procedure considering the personal interviews.
There are no differences for appeals against decisions in the accelerated procedure compared to the regular procedure except for the time limits (see sections on Regular Procedure: Appeal, Dublin: Appeal and Admissibility Procedure: Appeal).
In appeals against inadmissibility decisions (including Dublin), against decisions made at the airport or if the person comes from a safe country of origin, the time limit for an appeal is 5 working days, which can be an obstacle, especially when the person concerned is located in a place where there is no legal advisory office (NGO) nearby, or in detention.
In the accelerated procedure in the test phase, the time limit for appeals against substantive decisions is 10 days, but as described before, a free legal representative will support the asylum seeker with the appeal if they think there is a prospect of success. The legal representative has to inform the asylum seeker within a short period of time if he or she will make an appeal or not. If not, the asylum seeker has to try to find other support within the time period if he or she wishes to make an appeal anyway.
In the test phase, all applicants are entitled to free legal assistance (advice and representation) during the preliminary phase and the accelerated procedure. An applicant can explicitly renounce free legal assistance. Only persons with a university degree in law can work as legal representatives. The legal representative is already assigned to the applicant before the first interview takes place. The latter attends the personal interviews and is given the possibility to write a statement in case the SEM plans to take a negative decision. If the client is an unaccompanied minor, the legal representative also takes over the function of the person of confidence. The legal representation ends with the coming into force of a decision of the SEM or with the decision to continue the asylum procedure outside of the test phase. It also ends if the legal representative informs the applicant that he or she will not make an appeal against a negative decision because he considers that the application is prima facie without merit.9 This can constitute a problem as the legal representative instead of the court of appeal carries out the assessment of the merit of an application.
An external evaluation of the test procedure concluded that the provision of free legal assistance leads to better information for asylum seekers and therefore higher acceptance of the asylum procedure. It also has a positive effect on the quality of the asylum decisions of the SEM. Furthermore, free legal representation leads to a more targeted use of appeals.10
A legislative amendment is foreseen, which was adopted by the parliament on 25 September 2015, called “Erlass 2– Neustrukturierung des Asylbereichs”.11 The people approved it in a referendum on 5 June 2016.12 It is a restructuring of the asylum system modelled according to the pilot project for an accelerated procedure in the test centre. Once the new system will enter into force, there will be state-funded legal assistance for every asylum seeker provided by the law in the future. This will apply both to the regular and admissibility procedure. The amendment is not expected to enter into force before 2019.
- 1. Test Phases Ordinance.
- 2. Draft of the new Asylum Act, text adopted by the parliament, 24 September 2015, available in German at: http://bit.ly/1LbCYKw.
- 3. Federal Council, Referendum on Asylum Act of 5 June 2016.
- 4. SEM, ‘Test phase aiming at acceleration of asylum procedures: objectives reached’, 14 March 2016, available in French at: http://bit.ly/2jUW98T.
- 5. Article 108 AsylA.
- 6. Article 37 AsylA.
- 7. Article 40 AsylA.
- 8. Article 108 AsylA.
- 9. Article 23-28 Test Phases Ordinance.
- 10. SEM, ‘Test phase aiming at acceleration of asylum procedures: objectives reached’, 14 March 2016, available in French at: http://bit.ly/2jUW98T.
- 11. Draft of the new Asylum Act, text adopted by the parliament, 24 September 2015, available in German at: http://bit.ly/1LbCYKw.
- 12. Federal Council, Referendum on Asylum Act of 5 June 2016.