The SEM is the competent authority for the decision-making on the asylum application at first instance. The competences of the SEM comprise, besides asylum, also other areas in the field of migration such as immigration or integration. However, the authority dealing with asylum is a specialised section within the SEM.
The Asylum Act sets time limits for making a decision on the asylum application at first instance. In the case of inadmissibility decisions, the decision should be made within 5 working days of the submission of the application, or within at most 5 working days of the moment when the concerned Dublin state has accepted the transfer request. In all the other cases, decisions should be made within 10 working days of the submission of the application.1 However, the procedural deadlines set in Swiss law are only directory provisions and have no compelling character. Within the airport procedure, decisions must be issued within 20 days of the submission of the application. Otherwise, the SEM allocates the applicant to a canton.2
On 31 December 2016, 27,711 applications were pending at first instance, 22,353 of which had been pending for more than 6 months.5
Because of an increase of asylum applications in 2008 and the general overburdening of the SEM due to the lack of staff, the latter had to set priorities in the examining of applications (see section on Fast-Track Processing).
In August 2012, a so-called “48-hour procedure” was set in place, which has the purpose to treat asylum requests from safe European countries within 48 hours if no further examination is required. At the time, asylum claims from Bosnia-Herzegovina, the Former Yugoslav Republic of Macedonia (FYROM) and Serbia were included in those procedures.6 In March 2013, the 48-hour procedure was extended to asylum claims from Kosovo and Georgia.7 In October 2014, the 48-hour procedure was also applied for asylum requests by persons from Hungary.8
As these nationalities fall under the “safe country of origin” concept, the procedure may be described as accelerated since appeals must be lodged within 5 working days. This is not formally an accelerated procedure, however.
In addition, on 1 April 2013, the SEM started a fast-track procedure for countries of origin with a very low recognition rate such as Nigeria, Gambia, Morocco and Algeria. These cases cannot be treated in the 48-hour procedure, as the organisation of return to non-visa-waiver-countries is more complicated. In these cases, the SEM plans to take a decision within 20 days. The asylum seekers are not transferred to the cantons, but the procedures are normally concluded while they are still in the federal reception and processing centres.9
In January 2016, the SEM confirmed that it will maintain its treatment strategy: manifestly unfounded cases as well as applications from countries with a low recognition rate (48-hour procedure and fast-track procedure) and Dublin cases are treated with priority. The SEM acknowledges that this can lead to longer procedures for persons who are in need of protection.10
In 2016, 4,555 cases were treated in the fast-track procedure, and 1,630 in the 48-hour procedure. Out of these cases, 19 were granted asylum in the fast-track procedure, and 15 in the 48-hour procedure. 33 persons were granted temporary protection in the fast-track procedure, 155 in the 48-hour procedure.11
The SEM carries out the whole first instance procedure. It is therefore also responsible for conducting the interviews with the applicants during the asylum procedure.
During the preparatory phase, the applicant undergoes a short preliminary interview. In general, this interview is carried out systematically, but it can be replaced by the interview on the grounds for asylum.12 The preliminary interview encompasses issues on the identity, the origin and the living conditions of the asylum seeker. It also covers the essential information about the journey to Switzerland and summarily the reasons for seeking asylum.13 An interpreter can be present during the preliminary interview if necessary.14 The minutes of the interview are generally written down. In case the SEM intends to take an inadmissibility decision (see section on Admissibility Procedure), the applicant is granted the right to be heard. The same applies if the person deceives the authorities regarding his or her identity and this deception is confirmed by the results of the identification procedure or other evidence, if the person bases his or her application primarily on forged or falsified evidence, or if he or she seriously and culpably fails to cooperate in some other way.15 In those cases, there is no second interview.
In all the other cases, the applicant has a second interview, the so-called interview on the grounds for asylum. On this occasion, the applicant has the possibility to describe his or her reasons for flight and, if available, to present pieces of evidence. In principle, the SEM has the possibility to entrust the cantonal authorities with the conduct of the second interview in view of an acceleration of the procedure. However, this is not done in practice. If necessary, an interpreter is present during the interview. A representative and an interpreter of the applicant’s choice can accompany him or her.16 Also, a representative of an authorised charitable organization (coordinated by the Swiss Refugee Council) is present in the interview. This person participates as an independent observer in order to clarify facts, suggest further clarification or raise objections to the minutes, but he or she has no party rights.17
Neither audio nor video recording of the personal interview is required under Swiss legislation. However, written minutes are taken of the interview and signed by the persons participating in the interview at the end, after a translation back into the language of the applicant (carried out by the same interpreter who had already translated during the interview).18 Before signing the minutes, the applicant has the possibility to make further comments or corrections to the minutes. In general, the transcription is considered sufficiently verbatim, but the Swiss Refugee Council and other charitable organisations have positively commented on the possibility to use audio or video recording as it would provide for a means to check the content and course of the interview, as well as of the performance of the interpreter if necessary. Video conferencing has only very rarely been used for the interviews. In the test procedure in Zurich, the pilot project for a new accelerated asylum procedure, the SEM has been testing interpretation via Skype for Business, in order to reduce costs.
According to Swiss asylum law, the presence of an interpreter during the personal interviews is not an absolute requirement, as an interpreter shall be called in “if necessary”.19 Normally, an interpreter nevertheless participates in the interviews. According to the SEM, only when the knowledge of an official Swiss language by an applicant is sufficient, no interpreter is needed for the interview.20 However, in certain cases, it has been observed that applicants – especially Nigerian applicants – are interviewed in English. This is problematic if the interviewed person, contrary to the assumption of the SEM, does not sufficiently master that language. The SEM has a code of conduct applicable for its interpreters.21
Even if, in general, an interpreter is present during the interviews, a certain number of problems have been identified with regard to simultaneous translation. Internal, unpublished surveys on procedural problems conducted by the representatives of charitable organisations attending interviews regarding the grounds for asylum (coordinated by the Swiss Refugee Council) regularly name difficulties relating to simultaneous translation as a main problem.
The representatives of charitable organisations also point out that several interpreters are not impartial, sometimes even have close ties to the regime in the country of origin, or that they are not professional (imprecise, no literal translation but a summary, lacking linguistic competence). Problems have also been identified in relation to the difference in accent or dialect between the interpreter and the applicant, especially in cases where the applicant’s mother tongue was Tibetan, Kurdish of Syria or Dari. Furthermore, they have pointed out the use of interpreters in other languages than the applicants’ mother tongue (languages less mastered by the applicants concerned) as a consequence of the lack of interpreters. This has especially been observed in languages (such as Tigrinya, Syrian Kurdish) that are often required because they are spoken by important communities of applicants.22 Currently, there is no lack of interpreters of certain languages, but this can change again depending on the number of asylum seekers from certain countries. The other mentioned problems regarding interpretation have persisted during 2016.
Swiss law provides for an appeal mechanism in the regular asylum procedure. The first and last competent authority for examining an appeal against inadmissibility and substantive decisions of the SEM is the Federal Administrative Court (TAF).23 A further appeal to the Federal Supreme Court is not possible (except if it concerns an extradition request or detention in Dublin cases).24 The TAF can either deliberate on the merits of a case and issue a new, final decision or dismiss the decision and send the case back to the SEM for reassessment.
An appeal to the TAF can be made on two different grounds: the violation of federal law, including the abuse and exceeding of discretionary powers; and incorrect and incomplete determination of the legally relevant circumstances.25 It is important to note in this respect that the TAF cannot fully verify asylum decisions of the SEM anymore, since the examination for appropriateness has been abolished in the new Asylum Act as of 1 February 2014.26 Appropriateness of a decision means situations in which the first instance authority has a certain margin of appreciation in which it can manoeuver. Within this margin of appreciation, there can be decisions that are “inappropriate” but not illegal because they still fall within the margin of appreciation and they respect the purpose of the legal provision, but the discretionary power was used in an inappropriate way. Previously, the Court could examine whether or not a decision made by the SEM was appropriate. But since February 2014, the Court can examine the SEM’s decisions on asylum only regarding the violation of federal law, including the abuse and exceeding as well as undercutting (but not the inappropriate use) of discretionary powers or incorrect and incomplete determination of the legally relevant circumstances.27 Even if the Court can still verify the appropriateness of the enforcement of removal (as this part of the decision falls under the Foreign Nationals Act, as opposed to the decision on asylum, which falls under the Asylum Act and is therefore subject to the limitation of the Court’s competence), it is questionable whether the legal remedy in asylum law is effective. The limitation of the Court’s competence in asylum decisions seems problematic and unjustified in view of the highly ranking rights to life, liberty and physical integrity that are at stake. Also, it can lead to incongruities between the areas of asylum and foreigners’ law.28 In practice, the limitation of the Court’s competence has proven to be extremely problematic especially in Dublin cases when it comes to the question whether or not Switzerland should apply the sovereignty clause for humanitarian reasons (see section on Dublin: Appeal).
The appeal must meet a certain number of formal criteria (such as written form, official language, mention of the complaining party, signature and date, pieces of evidence if available). The proceedings in front of the court shall be conducted in one of the 4 official languages,29 which are German, French, Italian and Romansh. Writing an appeal can be an obstacle for an asylum seeker who does not speak any of these languages. In practice, the Court sometimes translates appeals or treats them even though they are written in English. The court can also set a new time limit to translate the appeal, but there is no legal basis for this procedure; it depends on the goodwill of the responsible judge. As a service to persons who want to write an appeal themselves, the Swiss Refugee Council offers a template for an appeal with explanations in different languages on its website.30
In addition, it must be clear that it is an appeal and what the intention of the appeal is. If an appeal does not meet the criteria, but the appeal has been properly filed, the Court shall grant an appellant a suitable additional period to complete the appeal.31
The time limit for lodging an appeal against negative decisions on the merits is 30 days. The Court normally has to take decisions on appeals against decisions of the SEM within 20 days.32 In reality, the average processing time for the Court to take a decision was longer in some cases. Between 1 January and 19 August 2016, 35 procedures could be conducted within 20 days, and nine procedures could only be conducted within 436 days.33
In general, an appeal has automatic suspensive effect in Switzerland.34 Appeals in Dublin cases are an exception: suspensive effect is not automatic but can be granted upon request.
Different obstacles to appealing a decision can be identified. One important obstacle is the fact that the Court may demand an advance payment (presumed costs of the appeal proceedings), under the threat of an inadmissibility decision in case of non-payment. Only for special reasons can the full or part of the advance payment be waived.35 In fact, an advance payment is mostly requested when the appeal is considered as prima facie without merit, which may be fatal to destitute applicants in cases of a wrong assessment. Such wrong assessments have been noted by the European Court of Human Rights (ECtHR).36 Another obstacle is set by the limitation of the competence of the TAF since 1 February 2014.
Within the appeal procedure, the Court has the possibility to order a hearing if the facts are not elucidated in a sufficient manner.37 In practice, it has hardly ever made use of this possibility.
Access to legal assistance differs between the regular as well as the airport procedure on the one hand and the accelerated procedure at the test centre in Zurich on the other hand, as well as the planned restructuring of the asylum procedure in the future (see section on Accelerated Procedure).
The right to free administration of justice is enshrined in the Federal Constitution. In both the first instance procedure and in the appeal procedure,38 the right to free administration of justice can encompass proceedings free of charge and free legal representation. The first can be granted if the person does not have sufficient resources and the appeal does not appear prima facie without merit. In addition, if these criteria are met and the representation by a lawyer seems necessary in order to safeguard the rights of the person, a lawyer can be assigned to a party to the proceedings.39
The right to free administration of justice is specifically regulated in asylum law since February 2014. Contrary to the general provision in the Federal Act on Administrative Procedure, the legal representation is generally presumed to be necessary in the asylum procedure. It is therefore no longer a precondition to establish the necessity of legal representation, except for appeals within a Dublin procedure, a revision procedure or a re-examination procedure. A legal representative has to hold a university degree in law.40 Even if the necessity test has become obsolete, the merit of an appeal is still tested. The described legal basis regulates the access to free legal assistance within the regular and the airport procedure.
In the past, restrictive practices regarding free legal assistance have been observed in Switzerland, during the first instance procedure as well as during the appeal procedure.41 During the first instance procedure, generally no state-funded free legal assistance is granted. While the argument within the first instance procedure had often been the lacking necessity of legal representation,42 in the appeal procedure the dismissal has in general been justified with the lack of merit of an appeal. The merit test is carried out on the basis of the file only (no hearing).43 These observations were made before the abolition of the necessity test in the Asylum Act in February 2014. There is no comprehensive recent report on how practices have changed since, but the observation concerning the appeal procedure might still be applicable. The practice does not seem to be uniform, as single judges decide on the matter. Furthermore, legal advisory offices have repeated practical difficulties in obtaining access to free legal assistance. For example, legal advisory offices are granted a lower amount than private lawyers. Furthermore, collaborators of legal advisory offices are only recognised as free legal representatives if they work a certain amount of days per week; in one case it was stated that a part-time position of 25 % was insufficient.
In the regular and the airport procedure, independent legal advisory offices cover most of the legal assistance work in practice. On the one hand, there are national legal advisory offices that are situated near the reception and processing centres and on the other hand, there are cantonal legal advisory offices that take over the legal assistance after the transfer of applicants to a canton. These offices are mostly projects of NGOs and they are for the most part funded by donations.44 Most of the legal advisors have a university degree in law, but are not attorneys. Even if de facto they provide generally free legal assistance inasmuch as no advance payment is required, there is no legal right to state-funded legal assistance from these independent legal advisory offices and the latter cannot, in practice, offer professional legal assistance covering all the needs because their resources are limited. This contrasts with the assumption made by the Federal Administrative Court that the independent legal advisory offices could replace the granting of free administration of justice.45 There exist a certain number of private lawyers’ offices specialised in asylum and foreigners’ law, but the costs are quite high (often an advance payment is required) and against the background of the restrictive practice of the SEM and the Court regarding free administration of justice, this constitutes an important obstacle for applicants.
Furthermore, access to legal assistance can be difficult for persons in detention, as their means to contact and find a legal representative within the short time limits for appeal (especially in case of inadmissibility decisions) are limited.
It seems not to be the amount of financial compensation itself that constitutes an obstacle for independent legal advisory offices or private lawyers to engage in the provision of legal assistance to asylum seekers. But it is rather the difficulty to get financial compensation at all that constitutes an obstacle – in combination with the limited resources for the independent legal advisory offices respectively in combination with the advance payment that private lawyers usually require (that many applicants cannot afford).
A legislative amendment is foreseen, which was adopted by the parliament on 25 September 2015 and approved by the Swiss people in a referendum on 5 June 2016,46 called “Erlass 2– Neustrukturierung des Asylbereichs”.47 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 would apply both to the regular and admissibility procedure. The amendment is not expected to enter into force before 2019 – this depends on how long the process of adapting the ordinances and other implementing decrees will take.
- 1. Article 37 AsylA.
- 2. Article 23(2) AsylA.
- 3. Cases that were decided in 2016: SEM, information provided by email,18 January 2017.
- 4. SEM, Migrationsbericht 2015 (Migration Report 2015), August 2016, available in German at: http://bit.ly/2jXS8Bk, 24.
- 5. SEM, Information provided by email, 18 January 2017.
- 6. SEM, ‘Special measures for asylum seekers from safe European countries’, 21 August 2012, available at: http://bit.ly/1IdjPeq.
- 7. SEM, ‘48-hour procedure extended to Kosovo and Georgia’, 26 March 2013, available at: http://bit.ly/1GpBzRB.
- 8. SEM, ‘Asylum applications from Hungarian citizens: procedures dealt with within 48 hours’, 29 October 2014, available in French, German and Italian at: http://bit.ly/1TNbFhA.
- 9. SEM, Interview in the SonntagsZeitung, 22 September 2013, available at: http://bit.ly/1jPXp9V; Interview in the Neue Zürcher Zeitung, 30 May 2015, available at: http://bit.ly/1Ljxhxt.
- 10. SEM, ‘Asylum: situation still under pressure in 2016’ 28 January 2016, available in French at: http://bit.ly/2kn8O5O.
- 11. SEM, Statistics provided by email, 18 January 2017.
- 12. Article 19(2) AsylA.
- 13. Article 26(2) AsylA.
- 14. Article 19(2) AO1.
- 15. Article 36 AsylA.
- 16. Article 29 AsylA.
- 17. Article 30 AsylA.
- 18. Article 29(3) AsylA.
- 19. Article 29(1bis) AsylA.
- 20. SEM, Handbuch Asyl und Rückkehr. Anhörung zu den Asylgründen (Manual on asylum and return, Interview regarding the reasons for asylum), available in German at: http://bit.ly/1Fk7AXb, 8; Asylum Appeals Commission, Decision EMARK 1999/2 of 27 October 1998, para 5.
- 21. SEM, Kompetenzprofil Dolmetschende BFM (Federal Office for Migration, competence profile for interpreters), 2011.
- 22. Ibid.
- 23. Article 105 AsylA. Most judgments of the Federal Administrative Court can be found here: http://bit.ly/1NgE8vb.
- 24. Article 83(c)-(d) Federal Supreme Court Act (Loi sur le Tribunal fédéral).
- 25. Article 106 AsylA.
- 26. Article 106(1) AsylA.
- 27. For a more detailed analysis of the discretionary power of the first instance authority and the competence of the Federal Administrative Court, see Federal Administrative Court, Decision E-641/2014 of 13 March 2015.
- 28. For a more thorough analysis of the changed provision in the Asylum Act, see Thomas Segessenmann, Wegfall der Angemessenheitskontrolle im Asylbereich (Art. 106 Abs. 1 lit. c AsylG) (Cancellation of the examination of appropriateness in the area of asylum), ASYL 2/13, 11ff.
- 29. Article 33a APA.
- 30. Swiss Refugee Council Fiches d’information sur la procédure d’asile (Information leaflets on the asylum procedure), available in several languages at: http://bit.ly/1QPhrAg.
- 31. Article 33a and 52 APA.
- 32. Article 109 AsylA.
- 33. Federal Administrative Court, Data provided by email, 17 August 2016 and 25 September 2016.
- 34. Article 55(1) APA.
- 35. Article 63(4) APA.
- 36. For example ECtHR, MA v Switzerland, Application No 52589/13, Judgment of 18 November 2014.
- 37. Article 14 APA.
- 38. Articles 8(1) and 29(1) and (3) Constitution.
- 39. Article 65(1)-(2) APA.
- 40. Article 110a AsylA.
- 41. ECRE, Survey on legal aid for asylum seekers in Europe, 2010, available at: http://bit.ly/1IGRz2l, 33.
- 42. Asylum Appeals Commission, Decision EMARK 2001/11 of 10 July 2001.
- 43. ECRE, Survey on legal aid for asylum seekers in Europe, 2010.
- 44. See for example Caritas, Rechtsberatung, available in German at: http://bit.ly/1TpPa1T; Swiss Church Aid (HEKS), Rechtsberatung in der Schweiz, available in German at: http://bit.ly/1R3L0J7.
- 45. Asylum Appeals Commission, decision EMARK 2001/11 of 10 July 2001. See also Stern, Kostenloser Rechtsbeistand für Asylsuchende in der Schweiz – Rechtspraxis, Rechtsgrundlagen, Potentiale und Perspektiven (Free legal representation for asylum seekers in Switzerland – legal practice, legal basis, potentials and perspectives), 2013, Asyl 13/2, 4ff.
- 46. Federal Council, Referendum on Asylum Act of 5 June 2016.
- 47. Draft of the new Asylum Act, text adopted by the parliament, 24 September 2015, available at: http://bit.ly/1LbCYKw.