Registration of the asylum application

Switzerland

Country Report: Registration of the asylum application Last updated: 30/11/20

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According to Swiss law, an asylum application can be lodged at a federal asylum centre, 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] since the Swiss Parliament has decided to abolish the possibility to lodge asylum applications at Swiss representations abroad from 29 September 2012 onwards.[2] Any statement from a person indicating that he or she is seeking protection in Switzerland from persecution elsewhere is considered as an application for asylum.[3]

In general, foreign nationals without a valid permit of stay in Switzerland lodge an asylum application in one of the six federal asylum centres run by the SEM. 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 him or her to a federal asylum centre. The competent authority establishes his or her 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.[4]

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.[5]

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 reception and processing 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 prison, 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 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, he or she is issued an N permit by the cantonal authority.[7] In the context of the re-structure of the asylum system in March 2019,it was not clear whether detained asylum seekers would have access to legal assistance. The SEM assumed that this was not the case, since the persons concerned do not reside in a federal asylum centre. However, the Federal Administrative Court ruled in a recent judgment of November 2019 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]

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 the 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),[9] which also provides access to free counselling and legal representation.[10]

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.

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.

By virtue of the Dublin Association Agreement that came into force on 1 March 2008,[11] Switzerland applies the Dublin Regulation. Therefore, the SEM has to examine whether Switzerland (or another state) is competent for examining an application (see section on Dublin). It is therefore not possible anymore to refuse entry to asylum applicants or return them directly to neighbouring states without registering them and examining their application (at least) formally.[12]

According to the Asylum Act, asylum seekers are obliged to cooperate in the establishment of the facts during the asylum procedure (duty to cooperate).[13] 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 it this would amount to a violation of the Refugee Convention being reserved.[14] This provision seems to be problematic with regard to access to the asylum procedure, as well as to the right to an effective remedy.[15] There is not much experience in practice and the explanation in the manual of the SEM is not conducive.[16] 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.

 


[1]Article 19 AsylA.

[2]Parliament, Objets parlementaires, 10.052 Loi sur l'asile: Modification, available (in French, German and Italian) at: http://bit.ly/1R3t815.

[3]Article 18 AsylA.

[4] Articles 19 and 21 AsylA; Article 8(1)-(2) AO1.

[5]Following the changes of law of 28 September 2012, Article 19(2) of the ancient AsylA has been cancelled. According to the latter, a person with a permission to stay had to submit an asylum application to the cantonal authority of the canton having granted the permission to stay: Directive III Field of Asylum, Das Asylverfahren, 4-5.

[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] Article 22ff AsylA.

[10] Article 22(3bis) AsylA.

[11] Accord entre la Confédération suisse et la Communauté européenne relatif aux critères et aux mécanismes permettant de déterminer l'Etat responsable de l'examen d'une demande d'asile introduite dans un Etat membre ou en Suisse (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, No. 0.142.392.68.

[12] Swiss Refugee Council (ed.), Handbuch zum Asyl- und Wegweisungsverfahren (Manual on the asylum and return procedure), 2009, 65ff; Article 21 AsylA.

[13] Article 8(1)-(3) AsylA.

[14] Article 8(3-bis) AsylA.

[15] Seraina Nufer, Die Abschreibung von Asylgesuchen nach dem neuen Art. 8 Abs. 3bis AsylG, ASYL 2/14, 3ff.

[16] SEM, Manuel Asile et retour, E5 – Radiation du rôle, 2.5 Procédure en application de l’art. 8, al. 3bis, LAsi, available (in French) at: http://bit.ly/2I2jDnG.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection