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According to Swiss law, an asylum application can be lodged at a federal asylum centre with processing facilities, an open border crossing or a border control point at an international airport in Switzerland. An application can be lodged only at the Swiss border or on Swiss territory.[1] Any statement from a person indicating that they are seeking protection in Switzerland from persecution elsewhere is considered as an application for asylum.[2] If the asylum application is made in front of an authority, which is not responsible, the person must be referred to the authority responsible in bona fides.
No specific time limits are laid down in law for asylum seekers to lodge their application, and persons are not excluded from the asylum procedure because they did not apply for asylum immediately or within a certain time limit after entering Switzerland. However, if the application is not lodged soon after the entry, authorities may demand a reasonable justification for the delay. If there is no justification and the person has not legal right to stay, there might be a procedure for illegal stay.
In general, foreign nationals without a valid permit[3] of stay in Switzerland need to lodge an asylum application in one of the six federal asylum centres with processing facilities run by the SEM.[4] If a person requests asylum at the border or following detention for illegal entry in the vicinity of the border or within Switzerland, the competent authorities shall normally assign them to a federal asylum centre. The competent authority establishes their personal data, informs the closest federal asylum centre and issues a transit permit. The person has to present him or herself at that centre during the following working day.[5]
There was no specific obstacle to registering an asylum application in 2022. Registration offices within federal asylum centres remained open at all times during the year.
Swiss law provides for exceptions to this rule for children under 14 years of age joining their parents in Switzerland, as well as for persons in prison (administrative detention or execution of a sentence). Children under 14 years do not have to lodge an application in a federal asylum centre. The cantonal authority (of the canton where the parents live) directly issues them an “N permit” (which certifies that an asylum application has been lodged and allows the applicant to remain in Switzerland until the end of the asylum procedure), after having confiscated the travel and identity papers. The cantonal authority then informs the SEM about the asylum application.[6]
If a person is in detention (criminal or administrative), it is also the cantonal authority (from the canton that has ordered the detention or the execution of a sentence) that accepts the asylum application (the same procedure applies to status S applicants). The cantonal authority establishes the personal data of the concerned person, takes pictures, confiscates the travel and identity papers and takes the fingerprints if necessary. The cantonal authority then informs the SEM about the asylum application. In case the applicant is released, they are issued an N permit by the cantonal authority.[7] In 2022, the SEM has decided that the granting of free legal protection should also apply to persons who file an asylum application from detention, thus changing its long-term practice. Beforehand, the Federal Administrative Court had already clarified in several judgments (no leading case decision) that the fact that the person concerned had lodged her asylum application while in detention does not dispense the competent authority of its duty to duly investigate the application in accordance with the law in force, in particular to ensure the right to free legal advice and representation.[8] Accordingly, the SEM considers asylum applications from detention as an independent procedure, whereby the rules and deadlines of the accelerated asylum procedure (Art. 102f para 1 AsylA) do not apply. In analogy to the extended procedure, in the view of the SEM this task should fall within the scope of the legal advice centres of the canton that ordered the detention. In November 2022, the SEM sent the mandate holders contract supplements to sign. These are supposed to be applicable from 1st January 2023 and include in particular the financial compensation as well as the scope of the services covered (counselling and representation in connection with the Dublin, asylum and readmission procedures).[9]
Asylum applications from detention are given priority by the SEM. As far as possible, the decision shall be opened before the release from detention (Dublin procedure or national procedure). As soon as the SEM receives an asylum application from detention, it sends the applicant a letter informing them of their entitlement to free legal protection. The letter also states that legal protection is guaranteed by the legal advice centre of the canton that ordered the detention. In addition, the asylum-seeking person is informed of the possibility of waiving legal protection. Without any message from the asylum-seeking person within five days, the SEM assumes that they wish to make use of the legal protection. If the asylum seeker expressly waives the right to free legal protection by signing the declaration attached to the above-mentioned letter, the SEM will notify the legal advice centre concerned in writing that their legal protection mandate is ending. The signed declaration of waiver is attached to this letter. In the event of a short period of detention (less than one month), the SEM shall request the asylum-seeking person to return to the competent federal asylum centre after their release from detention. There they are entitled to assistance from the free legal protection in the centres (pursuant to Article 102f et seq. AsylA).
Once informed, it is up to the asylum seeker and the legal advice centre to get in contact with each other and to sign a power of attorney. Obstacles in accessing prison facilities are to be discussed with the cantonal authorities concerned. The SEM will just while informing the cantons about the restructured procedure make them aware of the need to facilitate access.
The legal advice centre of the canton where the asylum seeker is detained, and that is mandated by the latter, must be involved in all decision-relevant steps in the first instance proceedings (in particular, conducting hearings on the grounds for asylum, granting the right to be heard and submitting submissions that contribute significantly to establishing the facts of the case). This also applies to Dublin proceedings and readmission proceedings. The deadlines for the accelerated, phased-in procedure do not apply. When scheduling hearings, the SEM take into account the availability of the legal advice centres “as far as possible”, meaning that hearings may also take place even if the legal council is not able to attend, which is highly criticised by the legal advice centres. The SEM does not submit a draft decision in the case of asylum procedures in detention. The opening of the decision and the possible preparation of an appeal are not considered as decision-relevant steps, which is highly criticised by the legal advice centres and the Swiss Refugee Council.
If the SEM does not receive a signed power of attorney granting a representation mandate to the legal advice centre, the decision is opened to the asylum seeker. The organisation of counselling interviews and the translation costs fall under the responsibility of the legal advice centres. Such counselling sessions must take place outside the hearing of the asylum seeker organised by the SEM.
103 asylum applications were lodged from detention in 2022.[10]
If an application is lodged at a border control point at an international airport, the competent cantonal authority establishes the personal data of the concerned person and takes a picture, as well as fingerprints in order to check possible matches in the automatic fingerprint identification system (AFIS) or Eurodac. The SEM is immediately informed about the application. The applicant will be channelled through the airport procedure (see section on Border Procedure),[11] which also provides access to free counselling and legal representation.[12] 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.[13]
As described above, depending on the situation, the respective competent cantonal or federal authority can register an application for asylum. Nevertheless, in all the cases the SEM is responsible for examining the application. After the asylum application is registered, the person concerned is issued a so called “N permit” which certifies that an asylum application has been lodged and allows the applicant to remain in Switzerland until the end of the asylum procedure.
By virtue of the Dublin Association Agreement,[14] Switzerland applies the Dublin III Regulation. Therefore, the SEM has to examine whether Switzerland (or another state) is competent for examining an application (see section on Dublin).
According to the Asylum Act, asylum seekers are obliged to cooperate in the establishment of the facts during the asylum procedure (duty to cooperate).[15] Asylum applicants who fail to cooperate without valid reason or who fail to make themselves available to the authorities for more than 20 days lose their right to have the asylum procedure continued. This rule also applies to persons who fail to make themselves available to the asylum authorities for more than five days in a federal centre without a valid reason. The applications are cancelled without a formal decision and the persons concerned cannot file a new application within three years – except if this would amount to a violation of the Refugee Convention.[16] This provision is problematic with regard to access to the asylum procedure, as well as to the right to an effective remedy.[17] So far, the Federal Administrative Court has not clarified whether there is a right to an appeal against the decision to cancel the application in these cases. However, in practice, according to the knowledge of the Swiss Refugee Council, usually asylum seekers who reappear within a few months are reintegrated in the procedure.
[1] Article 19 AsylA. The Swiss Parliament abolished the possibility to lodge asylum applications at Swiss representations abroad from 29 September 2012 onwards (see Parliament, Objets parlementaires, 10.052 Loi sur l’asile: Modification, available (in French, German and Italian) at: http://bit.ly/1R3t815.
[2] Article 18 AsylA.
[3] Persons with a valid cantonal residence permit who want to apply for asylum have to file the application in one of the federal asylum centres with processing facilities.
[4] The centres with processing facilities are located in Zurich, Bern, Basel, Boudry, Chiasso and Altstätten. A list of the federal asylum centres with their address and contact data is available at: https://bit.ly/3kXy79d.
[5] Articles 19 and 21 AsylA; Article 8(1)-(2) AO1.
[6] Article 8(4) AO1; Directive III Field of Asylum, Das Asylverfahren, para 1.1.1.3.
[7] Article 8(3) AO1; Directive III Field of Asylum, Das Asylverfahren, para 1.1.1.4.
[8] Federal Administrative Court, Decision D-5705/2019, 25 November 2019.
[9] According to SEM, this shall also apply to persons seeking temporary protection («status S»). Further, this procedure only applies to first asylum applications, not to subsequent applications or re-examination requests.
[10] Information provided by the SEM, 1 May 2023.
[11] Article 22ff AsylA.
[12] Article 22(3bis) AsylA.
[13] Information provided by Berner Rechtsberatungsstelle für Menschen in Not, 29 December 2022.
[14] Agreement between the Swiss Confederation and the European Community regarding the criteria and mechanisms to determine the responsible state for examining an asyulm application introduced in a member state or in Switzerland, 26 October 2004, available at : https://bit.ly/3kOQIdq.
[15] Article 8(1)-(3) AsylA. Asylum seekers are obliged to cooperate in establishing the facts. They must in particular reveal their identity; hand over their travel documents and identity papers; state at the interview why they are seeking asylum; indicate any evidence in full and submit this without delay or, as far as this seems reasonable, endeavour to acquire such evidence within an appropriate period; cooperate in providing biometric data; undergo a medical examination ordered by SEM (Article 26a AsylA).
[16] Article 8(3-bis) AsylA.
[17] Seraina Nufer, Die Abschreibung von Asylgesuchen nach dem neuen Art. 8 Abs. 3bis AsylG, ASYL 2/14, 3.