Admissibility procedure

Author

Swiss Refugee Council Visit Website

General (scope, criteria, time limits)

In Switzerland, all asylum seekers have to undergo the admissibility procedure. This procedure should take place in the first 3 weeks after the application for asylum has been filed, and is called the “preparatory phase”.[1] Within this time, the SEM records the asylum seekers’ personal details and normally takes their fingerprints and photographs. It may collect additional biometric data, prepare reports on a person’s age, verify evidence and travel and identity documents and make enquiries specific to origin and identity. At this time, the asylum seekers will normally be interviewed by the SEM about their identity and their itinerary, and summarily about the reasons for leaving their country. On the basis of the gathered information, the SEM reaches the decision on admissibility, which aims to determine whether the decision should be examined on the merits or deemed inadmissible. If the application cannot be considered as an asylum claim according to the Asylum Act or if the application is not sufficiently justifiable and the asylum seeker withdraws their application, the application is cancelled without a formal decision.[2] Similarly, the application is cancelled without a formal decision if asylum applicants 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 (see Registration of the asylum application).

The reasons for rejecting an asylum application as inadmissible are similar, but not identical to the ones mentioned in Article 33 of the recast Asylum Procedures Directive, and can be found in Article 31a(1)-(3) AsylA.

An application is inadmissible where the asylum seeker:

• Can return to a Safe Third Country in which they have previously resided;
• Can be transferred to the responsible country [under the Dublin Association Agreement];
• Can return to a third country in which they have previously resided;
• Can travel to a third country for which they have a visa and where they may seek protection;
• Can travel to a third country where they have family or persons with whom they have close links; or
• Has applied solely for economic or medical reasons. In this case, normally a second interview will take place before the SEM takes the decision to dismiss the application.[3]

The grounds relating to countries not listed as “safe third countries” in the Swiss list (see Safe Third Country) do not apply if there are indications that there is no effective protection against refoulement in the individual case.[4]

Decisions to dismiss an application based of the Dublin Regulation must normally be made within three working days of the application being filed or after the Dublin state concerned has agreed to the transfer request.[5] In practice, these time limits are rarely respected.

The SEM delivered the following inadmissibility decisions from 2018 to 2022:

Source: SEM, 18 January 2018; 21 January 2019; 12 February 2020; 19 March 2021, 1 April 2022; 1 May 2023.

Personal interview

Every asylum seeker will be granted a first personal interview (which is in fact called Dublin Interview – see Personal interview) with questions about their identity and the itinerary.[6]  According to the SEM, they systematically interview accompanied minors aged 14 or over, whereas younger children are only interviewed directly if this is necessary to establish the facts. [7] Since spring 2021, a right to be heard is systematically granted to parents of children below the age of 14 concerning the specific situation of these children. This right is granted in both Dublin and national procedures in order to take into account all elements relating to the particular situation of these young children and to determine whether a personal hearing of the latter is necessary. In this context, the providers of legal protection services have been informed of the new measures taken by the SEM. They were asked to discuss the particular situation of children under 14 years of age during the first interview with the family members and then to promptly inform the SEM of any specificities (obstacles to removal, specific grounds for asylum, conflict of interest with the parents, etc.) so as to enable the planning of a possible hearing of the minor under 14 years of age if this should prove necessary.[8]

In the case of unaccompanied minors, there is no so-called Dublin Interview but a “first interview for unaccompanied minors”.

If the SEM decides to dismiss an application according to Article 31a(1) AsylA, there will be no second interview, but the asylum seeker is granted the right to be heard. This allows the person concerned to provide a statement in response to the intention of the SEM to dismiss the application.

The first short interview is the same as in the regular procedure (see section on Regular Procedure: Personal Interview). The right to be heard regarding the inadmissibility decision is usually granted at the end of the first interview or subsequently in writing.

Appeal

An appeal against a decision to dismiss an application must be filed before the Federal Administrative Court within 5 working days.[9]

The short time limit of five working days for lodging an appeal against an inadmissibility decision constitutes an obstacle where the free legal assistance renounces to appeal as the chances of success are considered very low. In those cases, applicants could theoretically approach a non-state-funded office for legal advice to ask for support. However, significant obstacles arise in practice, especially when asylum seekers are accommodated in federal centres situated in remote locations which are far away from independent legal advisory offices that are usually situated in urban areas.

In general, an appeal has automatic suspensive effect in Switzerland.[10] Appeals against inadmissibility decisions also have automatic suspensive effect, except for Dublin decisions (see section on Dublin: Appeal).

In principle, the Court should decide upon appeals against inadmissibility decisions within five working days,[11] which is not observed in practice as the average duration for Dublin appeals is 20 days.[12] Although this would be possible in principle, there are no personal hearings in front of the Court for inadmissibility cases.

The other modalities of the appeal are the same as in the regular procedure.

Legal assistance

The same rules as regards legal assistance under the regular procedure apply. See chapter on Regular procedure: Legal assistance above.

[1] Article 26 AsylA.

[2] Article 25a AsylA.

[3] Article 36(2) AsylA.

[4] Article 31a(2) AsylA.

[5] Article 37 AsylA.

[6] Information provided by the SEM, 12 January 2018.

[7] No personal interview was conducted with accompanied children under 12 years of age until 2021. A decision of the UN Committee on the Rights of the Child (Committee for the Rights of the Child, V.A. v. Switzerland, 28 September 2020, available at: https://bit.ly/3WHbQ2q) concerning Switzerland stated in 2020 that even children of young age must be heard in asylum procedures (see section on minors in Adequate support during the interview and credibility assessment).

[8] Information provided by the SEM, 1 April 2022.

[9] Article 108 AsylA (the Ordinance COVID-19 Asylum did not extend this deadline).

[10] Article 55(1) APA.

[11] Article 109 AsylA.

[12] Information provided by the Federal Administrative Court, 31 January 2023.