Short overview of the asylum procedure

Switzerland

Country Report: Short overview of the asylum procedure Last updated: 14/05/21

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Preliminary remarks – Process of restructuring the Swiss asylum system: Swiss Asylum Law has undergone a series of changes in the last few years and substantial modifications have entered into force in March 2019 after a test phase conducted between 2014 and 2019.[1] The Asylum Act and the Federal Act on Foreign Nationals and Integration as well as different relevant ordinances have been entirely or partially revised.

Fundamentally, the restructuring of the asylum system aims to significantly speed up asylum procedures. To this end, the reform brings together all the main actors of the procedure “under the same roof”. Asylum procedures are carried out in federal centres located in six defined regions in Switzerland. The reform sets up several procedures (accelerated, extended, Dublin) strictly limited in time. The processing times for asylum applications and the time taken to appeal have been significantly shortened. In order to ensure fair procedures according to the rule of law, asylum seekers whose application is examined within the accelerated procedure are entitled to free counselling, as well as free legal representation from the very beginning of the procedure (see Regular procedure).

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.

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.[2] 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 that are run by the SEM. 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. The proceeding is different if an application is filed at the international airports of Zurich and Geneva (see below).

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 – if the minority is doubted – collect and record the personal data of the asylum seeker, examine the evidence and establish the medical situation.[3]

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).[4] 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[5] 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 cannot be considered as an asylum claim according to the Asylum Act or if the application is not sufficiently justifiable and/or the asylum seeker withdraws his or her application, the latter is cancelled without a formal decision.[6] 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.[7]

In certain cases, the SEM will take an inadmissibility decision (so-called NEM or NEE), which means that it decides to dismiss the application without examining the substance of the case. Such a decision is for example taken if the asylum application is made exclusively for economic and 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.[8]

Dublin procedure: If the preliminary investigations indicate that another Member State might be responsible for processing the asylum application according to the Dublin III Regulation, a request for taking charge or taking 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 transfer to the competent Dublin State or the decision of SEM to examine the application on the merits in a national procedure.[9] In case of a Dublin procedure, the SEM has to examine whether grounds exist to make use of the sovereignty clause. If such grounds exist, 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 of the applicant to the receiving State is lawful, reasonable and possible.[10]

Accelerated procedure: Unless a Dublin procedure is initiated, the accelerated procedure itself starts as soon as the preparatory phase is completed.[11] It lasts a maximum of eight working days,[12] and includes mainly the following stages:[13]

  • 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 opinion 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 applicant can prove or credibly demonstrate that he or she fulfils 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 in Switzerland.[14] If this is the case, a positive asylum decision is issued.

If the SEM considers however that an applicant is not eligible for the refugee status or that there are reasons for his or her exclusion from asylum,[15] 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.[16] If the removal is either unlawful, unreasonable or impossible, the applicant will be admitted temporarily to 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 foreigners (without refugee status). The scope of the temporary admission as foreseen in national law exceeds the scope of the subsidiary protection foreseen by the 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 further in an extended procedure and the asylum seeker is allocated to a canton. The channelling into an extended procedure occurs in particular when a procedure cannot be concluded within eight working days because additional investigative measures are necessary.[17] In addition to a possible additional interview, other investigative measures can relate to the identity and origin of the person, the alleged medical problems, the documents submitted or the credibility of the allegations.

The decision to proceed with the extended procedure is an “incidental decision” (“Zwischenverfügungen” in German or “décision incidente” in French) that cannot be appealed before the final decision is issued so as to avoid lengthy procedures.

Appeal: If an applicant has not been granted asylum, the individual can submit an appeal against the decision of the SEM to the Federal Administrative Court.[18] 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.

With the entry into force of the new Asylum Act in March 2019, time limits for appeals have been significantly shortened and 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 (according to the list of the Federal Council) 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 (in force at least until 30 June 2021). In an extended procedure, the deadline for appeal is 30 days for in-merit decisions. As for regards 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.[19]

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.[20]

Airport procedure: If the asylum application is lodged at the border in the transit area of an international airport, special rules apply.[21] As a first step, the SEM has to decide whether entry into the territory should be allowed. 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 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.[22]

 

 

 

[1]        SEM, Asylum procedures available at: https://bit.ly/33NaCcb.

[2]        Article 19 AsylA.

[3]        Article 26 AsylA.

[4]        Article 26 AsylA.

[5]        Article 36(1) AsylA.

[6]        Article 25a AsylA.

[7]        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.

[8]        Article 31a AsylA.

[9]        Article 26b AsylA.

[10]       Article 44 AsylA; Article 83 FNIA.

[11]       Article 26c AsylA.

[12]       Article 37 (2) AsylA.

[13]       Article  20c AO1.

[14]       Article 49 AsylA.

[15]       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).

[16]       Article 44 AsylA; Article 83 FNIA.

[17]       Article 26d AsylA.

[18]       Article 105 AsylA.

[19]       Article 108 AsylA.

[20]       Article 46 AsylA; Article 21(2) Test Phases Ordinance.

[21]       Articles 22 and 23 AsylA.

[22]       Article 108(4) AsylA.

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