In Switzerland, all asylum seekers have to undergo the admissibility procedure. This procedure should take place in the first 3 weeks after the application for asylum has been filed, and is called the “preparatory phase”.1 Within this time, 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. At this time, the asylum seekers will normally be interviewed by the SEM about their identity and their itinerary, and summarily about the reasons for leaving their country. On the basis of the gathered information, the SEM reaches the decision on admissibility, which answers the question if the asylum request will be examined substantively or dismissed by an inadmissibility decision.
The reasons for dismissing an asylum application as inadmissible are similar, but not identical to the ones mentioned in Article 33 of the recast Asylum Procedures Directive, and can be found in Article 31a(1)-(3) AsylA.
An application is inadmissible where the asylum seeker:
(a) Can return to a “safe third country” in which he or she has previously resided;
(b) Can be transferred to the responsible country [under the Dublin Association Agreement];
(c) Can return to a third country in which he or she has previously resided;
(d) Can travel to a third country for which he or she has a visa and where he or she may seek protection;
(e) Can travel to a third country where he or she has family or persons with whom he or she has close links; or
(f) Has applied solely for economic or medical reasons. In this case, normally a second interview will take place before the SEM takes the decision to dismiss the application.2
The grounds relating to countries not listed as “safe third countries” in the Swiss list (see Safe Third Country) do not apply if there are indications that there is no effective protection against refoulement in the individual case.3
Decisions to dismiss an application must normally be made within 5 working days of the application being filed or after the Dublin state concerned has agreed to the transfer request.4 In practice, these time limits are rarely respected. There are several decisions from the Federal Administrative Court about delay of justice in relation to the similar rule before the revision of the law in February 2014. In a decision of 14 April 2014,5 the Court said that in view of the numerous pending files, not every asylum procedure could be decided within the provided time limit. Based on these special circumstances, the Court considered it unavoidable that the procedures take more time than what the law designated, which expresses itself in the term “normally” used in Article 37 AsylA.
Every asylum seeker will be granted a first personal interview with questions about his or her identity, the itinerary, and summarily about the reasons for leaving his or her country.
If the SEM decides to dismiss an application according to Article 31a(1) AsylA, there will be no second interview, but the asylum seeker is granted the right to be heard. There the person concerned can give a statement in response to the intention of the SEM to dismiss the application. This regards notably all the reasons for an inadmissibility decision described in the general part of this section, except if the application for asylum is made exclusively for economic or medical reasons. In this case, a second interview will take place according to Article 29 AsylA.
The first summary interview is the same as in the regular procedure (see section on Regular Procedure: Personal Interview). The right to be heard regarding the inadmissibility decision is usually granted at the end of the first interview. So the people who are present are the same as in the regular first interview (employee of the SEM who leads the interview, interpreter, sometimes a transcript writer).6 If the person requesting asylum is an unaccompanied minor, OSAR is of the opinion that his or her person of confidence must always also be allowed to take part in the hearing, because the hearing is a decisive procedural step.7 However, this is only systematically done in Dublin cases and in the airport procedure. In the other cases, the SEM is of the opinion that the person of confidence must only be invited for the second interview.
An appeal against a decision to dismiss an application must be filed before the TAF within 5 working days instead of 30 days in the regular procedure.
The time limit of 5 working days is relatively short. If the decision is made while the asylum seeker is still located in one of the 6 federal reception and processing centres, a legal advisory office close to the centre will be open at least one day a week. The legal advisors in the office can explain the decision to the person concerned and may support an appeal. But if the legal advisory office does not see any chance of success and refuses to write an appeal, the time limit can be very short for another lawyer or the person him or herself to write an appeal. Also, for asylum seekers located in remote accommodation facilities, there may not be a legal advisory office nearby, so the short period of 5 working days can be an obstacle to an appeal in these cases.
In general, an appeal has automatic suspensive effect in Switzerland.8 Appeals against inadmissibility decisions also have automatic suspensive effect, except for Dublin decisions (see section on Dublin: Appeal).
Normally, the court should decide appeals against inadmissibility decisions within 5 working days,9 which is not the case in practice. Like in regular procedure appeals, no personal hearing in front of the court takes place in practice.
Contrary to appeals in the regular procedure, the scope for the Court is limited to the question of whether the SEM acted within the law when it decided to dismiss the application.10
The other modalities of the appeal are the same as in the regular procedure.
In addition to the problems mentioned in the regular procedure (see section on Regular Procedure: Legal Assistance), the relatively short time limit of 5 working days for lodging an appeal in several cases also forms an obstacle to access to legal assistance.
- 1. Article 26 AsylA.
- 2. Article 36(2) AsylA.
- 3. Article 31a(2) AsylA.
- 4. Article 37 AsylA.
- 5. Federal Administrative Court, Decision D-1643/2014 of 14 April 2014.
- 6. If there is no transcript writer present, the employee from the SEM will write the transcript, there has to be a transcript in any case of all interviews and also of the right to be heard.
- 7. Article 17(3) AsylA.
- 8. Article 55(1) APA.
- 9. Article 109 AsylA.
- 10. Federal Administrative Court, Decision BVGE 2012/4 (E-6490/2011) of 9 February 2012, para. 2.2.