Author
The restructured Swiss Asylum System,[1] entered into force in 2019, aims to significantly speed up asylum procedures.[2] To this end, the reform brought together all the main actors of the procedure “under the same roof”. Asylum procedures are carried out in federal centres located in six asylum regions in Switzerland. There are three procedures (accelerated, extended, Dublin) strictly limited in time. In order to ensure fair procedures according to the rule of law, asylum seekers are entitled to free counselling, as well as free and independent legal representation from the very beginning of the procedure (see Regular procedure).
Application for asylum: A person can apply for asylum in a federal asylum centre with processing facilities, at a Swiss border or during the border control at an international airport in Switzerland.[3] The Swiss asylum procedure is organised as a single procedure.
In most cases, asylum applications are lodged in one of the six asylum centres with processing facilities run by the SEM (for an overview on the centres, see Reception Conditions – Housing). If this is not the case, the concerned asylum applicants are directed to one of those centres within 72 hours of filing the application for asylum. Even if they apply in one of the federal centres, asylum seekers can be transferred to one of the five other centres located in another region. As a result, they cannot choose in which region their application will be examined. See below for the proceeding if an application is filed at the international airports of Zurich and Geneva.
Preparatory phase: The preparatory phase (“phase préparatoire”) starts after the lodging of the application and lasts a maximum of 10 days in the case of a Dublin procedure and a maximum of 21 days for other procedures. The purpose of the preparatory phase is to carry out the preliminary clarifications necessary to complete the procedure, in particular to determine the State competent to examine the asylum application under the Dublin Regulation, conduct the age assessment – in case there is doubt as to the age of the applicant – and collect and record the personal data of the asylum seeker, and examine the evidence and establish the medical situation.[4]
During the preparatory phase, a first interview is held mainly to determine whether Switzerland is competent to examine the merits of the asylum application (Dublin interview).[5] The interview is conducted in the presence of the applicant’s legal representative and is usually translated over the phone by an interpreter. It collects information on the identity, the origin and the living conditions of the applicant and covers the essential information about the journey to Switzerland. The applicant is granted the right to be heard regarding possible reasons against a transfer to a Dublin member state[6] but the grounds for the asylum application are not discussed.
Cancellation and inadmissibility decision: On this basis, the SEM decides whether an application should be examined and whether it should be examined in substance. If the application is not sufficiently justifiable and the asylum seeker withdraws his or her application, the latter is cancelled without a formal decision.[7] Similarly, the application of asylum seekers will be cancelled without a formal decision if they fail to cooperate without valid reason or if they fail to make themselves available to the authorities for more than 20 days – or more than 5 days if the asylum-seeker is accommodated in a federal centre. In such circumstances, the persons concerned cannot lodge a new application within 3 years, unless this restriction would amount to a violation of the Refugee Convention.[8]
In certain cases, the SEM will take an inadmissibility decision (so-called NEM (French) or NEE (German)), which means that it decides to dismiss the application without examining the merits of the case. Such a decision is for example taken if the asylum application is made exclusively for economic or medical reasons. In practice, the most frequent reason for such a decision is the possibility of the applicant to return to a so-called safe third country or if according to the Dublin III Regulation another State is responsible for conducting the asylum and removal procedures.[9]
Dublin procedure: If preliminary investigations indicate that another Member State might be responsible for processing the asylum application according to the Dublin III Regulation, a request to take charge or take back is submitted to the relevant State. Under the Asylum Act, a Dublin procedure formally begins with the submission of the request to take charge or take back and lasts until the effective transfer to the competent Dublin State or the decision of SEM to examine the application on the merits in a national procedure.[10] In case of a Dublin procedure, the SEM has to examine whether grounds exist to make use of the sovereignty clause. If so, Switzerland takes over the responsibility for examining the application even if another Member State would be responsible according to the Dublin Regulation. In all the other cases where a decision to dismiss the application without examining the substance of the case has been taken, the SEM examines if the transfer to the receiving State is lawful, reasonable and possible.[11]
Accelerated procedure: Unless a Dublin procedure is initiated, the accelerated procedure begins right after the preparatory phase.[12] It lasts a maximum of eight working days,[13] and includes the following stages:[14]
- Preparation of a second interview regarding the grounds of asylum;
- Conduct of the second interview and/or granting the right to be heard;
- Assessment of the complexity of the case and decision to continue the examination of the asylum application under the accelerated procedure or proceed to the extended procedure;
- Preparation of the draft decision;
- If negative, legal representative’s statement[15] on the negative draft decision within 24 hours;
- Notification of the decision;
After the second interview, the SEM carries out a substantive examination of the application. It starts by examining whether the applicants can prove or credibly demonstrate that they fulfil the legal criteria of a refugee. As laid down in law, a person able to demonstrate that he or she meets these criteria is granted asylum (B permit) in Switzerland.[16] If this is the case, a positive asylum decision is issued.
If the SEM considers that an applicant is not eligible for the refugee status or that there are reasons for their exclusion from asylum,[17] it will issue a negative asylum decision. In this case, the SEM has to examine whether the removal of the applicant is lawful, reasonable and possible in practice.[18] The result of this examination is communicated in the same decision as the negative asylum decision.[19] If the removal is either unlawful, unreasonable or impossible, the applicant will be admitted to temporarily reside in Switzerland (F permit). A temporary admission constitutes a substitute measure for a removal that cannot be executed. It can be granted either to persons with refugee status that are excluded from asylum or to persons who have not been recognised as a refugee but where the removal order cannot be executed. The scope of the temporary admission as foreseen in national law exceeds the scope of the subsidiary protection foreseen by the EU recast Qualification Directive, as it covers both persons whose removal would constitute a breach of international law, as well as persons who cannot be removed for humanitarian reasons (for example medical reasons).
Extended procedure: If it appears from the interview on the grounds for asylum that a decision cannot be taken under an accelerated procedure, the application is processed under an extended procedure and the asylum seeker is allocated to a canton. This occurs in particular when a procedure cannot be concluded within eight working days because additional investigative measures are necessary.[20] In addition to a possible additional interview, other investigative measures can relate to the identity and origin of the person, medical examinations, documents submitted, or credibility of the allegations.
Appeal: If an applicant has not been granted asylum, they can submit an appeal against the decision of the SEM to the Federal Administrative Court.[21] The latter is the first and last court of appeal in asylum matters in Switzerland. An applicant has thus only one possibility to appeal against a negative decision in the asylum procedure (except for extraordinary proceedings such as application for reconsideration or revision and proceedings under international instances). An appeal can be made against inadmissibility and negative in-merit decisions.
Time limits for depend on the type of the contested decision and proceedings in which the decision was issued. The time limit is five working days in the case of an inadmissibility decision, a decision in the airport procedure, or if the applicant comes from a so-called safe country of origin[22] and is evidently not eligible for refugee status and his or her removal is lawful, reasonable and possible. In an accelerated procedure, the time limit for appeal is seven working days but was temporarily extended to 30 days with the Ordinance COVID-19 Asylum. The Ordinance was cancelled prematurely on 15 December 2023 at the instigation of the SEM;[23] it was supposed to be in force at least until 30 June 2024.[24] In an extended procedure, the deadline for appeal is 30 days for in-merit decisions. Regarding incidental decisions (e.g. attribution to a canton), the deadline for appeal is 5 days in the accelerated and 10 days in the extended procedure.[25] The deadline starts one day after the decision is issued.[26]
Removal: The cantonal authorities are in charge of the execution of the removal of an applicant, regardless of whether the measure concerns a Dublin transfer or a removal to a country of origin.[27]
Airport procedure: If the asylum application is lodged at the border in the transit area of an international airport, special rules apply.[28] As a first step, the SEM has to decide whether entry into the territory should be allowed. In practice, the SEM automatically issues a decision on allocation to the transit zone. In the following days, it carries out a quick triage without a prior hearing. Applications for which the recognition rate is low or which the SEM considers unlikely to succeed remain at the airport. Otherwise, the person concerned will receive an entry permit.[29] In case entry is provisionally refused to an applicant, the whole asylum procedure is generally carried out in the transit area of the airport. The two hearings are scheduled in one day: the summary interview and the hearing on the grounds for asylum.[30] The denial of entry may be contested until notification of the asylum decision.[31] The SEM must then issue the asylum decision within a maximum of 20 days after the asylum application has been lodged. If that time limit is not met, the SEM allocates the applicant to one of the six federal asylum centres with processing facilities where he will undergo the regular procedure. The time for lodging an appeal against a negative asylum decision within the airport procedure is five working days.[32] In practice, this procedure is only applied at the airport of Geneva. In Zurich, the persons are sent to the federal asylum centre of Zurich after a short security check and without a previous legal hearing.[33]
[1] Swiss Asylum Law has undergone a series of changes in the last few years and substantial modifications entered into force in March 2019 after a test phase conducted between 2014 and 2019. The Asylum Act and the Federal Act on Foreign Nationals and Integration (FNIA) as well as different relevant ordinances have been entirely or partially revised. Before the entry into force of the new asylum system throughout the country in March 2019, SEM implemented a test phase in the federal asylum centre of Zurich (with a centre without processing facilities in Embrach) between 2014 and March 2019. Thereafter, a second test phase was conducted in Boudry (with a centre without processing facilities in Chevrilles/Giffers) from April 2018 to February 2019, in order to set up the appropriate processes and test the new accelerated procedure.
[2] SEM, Asylum procedures available in English (as well as German, French and Italian) at: https://bit.ly/33NaCcb. SEM, Asylum procedures available in English (as well as German, French and Italian) at: https://bit.ly/33NaCcb.
[3] Article 19 AsylA.
[4] Article 26 AsylA.
[5] Article 26 AsylA.
[6] Article 36(1) AsylA.
[7] Art. 26(3) AsylA.
[8] Article 8-bis AsylA. This reservation indicates that the prohibition to file an asylum application within 3 years cannot be applied if it would constitute a violation of the Convention, in particular of the right to seek protection.
[9] Article 31a AsylA.
[10] Article 26b AsylA.
[11] Article 44 AsylA; Article 83 FNIA.
[12] Article 26c AsylA.
[13] Article 37 (2) AsylA.
[14] Article 20c AO1.
[15] In consideration of this statement, the SEM can adjust its decision. The idea of the statement is that the facts are properly established and that the decision will be correct and comprehensible in terms of formality and in the merits.
[16] Article 49 AsylA.
[17] Asylum is not granted if a person with refugee status is unworthy of it due to serious misconduct or if he or she has violated or endangered Switzerland’s internal or external security (Article 53 AsylA). Further, asylum is not granted if the grounds for asylum are only due to the flight from the applicant’s native country or country of origin or if they are only due to the applicant’s conduct after his or her departure, so-called subjective post-flight grounds (Article 54 AsylA).
[18] Article 44 AsylA; Article 83 FNIA.
[19] This fact may lead to confusion for the persons concerned as the decision reads “1. Your asylum application is rejected, you have to leave Switzerland; 2. The return to your country of origin is considered unlawful, therefore you are granted a temporary admission”.
[20] Article 26d AsylA.
[21] Article 105 AsylA.
[22] According to the list of the Federal Council, see Safe countries of origin.
[23] Press release of the Federal Council, Coronavirus: cancellation of the ordinance on Covid measures in the asylum sector, 22 November 2023, available in French (and German and Italian) at: Coronavirus: Aufhebung der Verordnung für Covid-Massnahmen im Asylbereich (admin.ch).
[24] Press release of the Federal Council, Coronavirus: prolongation des mesures de protection dans le domaine de l’asile, 16 December 2022, available in French (and German and Italian) at: https://bit.ly/3XbLxkY.
[25] Article 108 AsylA.
[26] Article 20 APA.
[27] Article 46 AsylA.
[28] Articles 22 and 23 AsylA.
[29] Information provided by Caritas Suisse, 24 April 2024.
[30] Idem.
[31] Article 108(4) AsylA.
[32] Article 108(4) AsylA.
[33] Information provided by Berner Rechtsberatungsstelle für Menschen in Not, 29 December 2022 and 15 April 2024.