Admissibility procedure

Switzerland

Country Report: Admissibility procedure Last updated: 30/11/20

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.

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:

  1. Can return to a Safe Third Country in which he or she has previously resided;
  2. Can be transferred to the responsible country [under the Dublin Association Agreement];
  3. Can return to a third country in which he or she has previously resided;
  4. Can travel to a third country for which he or she has a visa and where he or she may seek protection;
  5. Can travel to a third country where he or she has family or persons with whom he or she has close links; or
  6. 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.[2]

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.[3]

Decisions to dismiss an application 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.[4] In practice, these time limits are rarely respected.

The SEM delivered the following inadmissibility decisions in 2017, 2018 and 2019:

Inadmissibility decisions: 2017-2018-2019

 

Ground for inadmissibility

2017

2018

2019

Safe third country: Article 31a(1)(a)

184

255

303

Responsibility of another Dublin State: Article 31a(1)(b)

5,838

4,185

2,720

Country where the applicant has previously resided: Article 31a(1)(c)

10

2

3

Country where the applicant has family or persons with close links: Article 31a(1)(e)

1

2

8

Application made exclusively for economic or medical reasons: Article 31a(3)

120

258

221

Subsequent application: Article 111c(1)

28

21

27

Total

6,211

4,723

3,282

Source: SEM, 18 January 2018; 21 January 2019; 12 February 2020. 

 

Personal interview

 

Every asylum seeker will be granted a first personal interview (which is in fact Dublin Interview) with questions about his or her identity, and the itinerary. No personal interview is conducted with children under 12 years of age.[5]

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 summary 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 instead of 7 working days in the accelerated procedure and of 30 days in the extended procedure.[6]

The relatively short time limit of five working days for lodging an appeal against a Dublin transfer decision constitutes an obstacle to lodging an appeal in cases where the free legal assistance denies to appeal as the chances of success are not seen as likely. In those cases, applicants could theoretically approach a non-state-funded office for legal advice to ask for support. This seems especially problematic with regard to the remote locations of federal centres as they 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.[7] 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,[8] which is not observed in practice. There is hardly ever a personal hearing taking place in front of the court. OSAR is not aware that such a personal hearing took place in 2019.

However, contrary to appeals in the regular procedure, the scope for the Court’s assessment is limited to the question of whether the SEM acted within the law when it decided to dismiss the application.[9]

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 Legal assistance above.

 


[1] Article 26 AsylA.

[2] Article 36(2) AsylA.

[3] Article 31a(2) AsylA.

[4] Article 37 AsylA.

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

[6]Article 108 AsylA.

[7] Article 55(1) APA.

[8]Article 109 AsylA.

[9] Federal Administrative Court, Decision E-6490/2011, 9 February 2012, para. 2.2., see also chapter 2.4 on appeals.

 

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