Dublin

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General

Dublin statistics: 2021

 Source: SEM, asylum statistics 2021 (Eurodac).

The Dublin III Regulation is applied directly since 1 January 2014.

 Application of the Dublin criteria

According to the SEM, in 2021 Switzerland issued a total of 4,904 take charge or take back requests to other Member States, compared to 4,057 in 2020, 4,848 in 2019, 6,810 in 2018 and 8,370 in 2017. They were based on the following criteria:

Source: SEM, Information provided on 1 April 2022.

The Federal Administrative Court clarified in 2015 that the presence of a family member or sibling in a pending asylum procedure in Switzerland qualifies as “legally present” for the purposes of Article 8(1) of the Dublin III Regulation.^[1] It also confirmed that Article 9 and 10 of the Dublin III Regulation are directly applicable, and that there is a reduced standard of proof to establish the competence of a Member State in the Dublin procedure.^[2]

The family criteria in particular are generally applied narrowly. The SEM’s practice regarding the effective relationship and regarding the definition of family members in the Dublin III Regulation is strict. A few recent examples can illustrate this:

Concept of “spouses”: In one case, the SEM was of the opinion that the applicant could not derive anything in his favour from the spouse living in Switzerland, since a stable relationship was required under the notion of spouses under Article 2(g) of the Dublin Regulation. In this context, Article 8 ECHR must be observed. In order to determine the nature of the actual relationship, various factors should be taken into account according to the SEM, in particular common housing, financial interdependence, the bonding of partners and the stability and duration of the relationship. The SEM concluded that the relationship between the spouses did not fall under the scope of Article 8 ECHR.

The Federal Administrative Court disagreed and stated that:

• Asylum seekers can rely directly on Article 9 of the Dublin Regulation;
• Article 2(g) of the Regulation, which defines family members, does not impose any further requirements for (formal) spouses; a stable relationship is only required for unmarried couples;
• Article 9 of the Regulation requires that the family member residing in Switzerland is entitled to stay in Switzerland in his or her capacity as a beneficiary of international protection. In addition to refugee status, international protection includes other protection status, granted due to a serious threat to life and limb resulting from arbitrary violence in the context of armed conflict in the country of origin. This shall also include the Swiss status of ‘temporary admission’, granted to an asylum seeker because of a precarious security situation in the country of origin.^[3]

In a principle judgment of January 2021, the Court expressed itself for the first time regarding the established right of residence as a prerequisite for relying on Article 8 ECHR. The Federal Administrative Court stated that a family can, in principle, request that its rights be considered in light of Article 8 ECHR, regardless of the residence status of the family member living in Switzerland. Additionally, it stated that Article 8 para. 1 ECHR is only violated if a balancing of interests leads to the result that the private interests of the persons concerned in the continuation of family interests in the continuation of family life in Switzerland outweigh public in Switzerland outweigh public interests in the transfer of a family member to the family member to the member state originally found responsible.[4]

The dependent persons and discretionary clauses

In addition to the cases in which Switzerland must apply the sovereignty clause because the transfer to the responsible Dublin State would violate one of its international obligations, Article 29a(3) AO1 provides the possibility to apply the sovereignty clause on humanitarian grounds. According to case-law, the sovereignty clause is not self-executing, which means that applicants can only rely on the clause in connection with another provision of national law.^[5] There are no general criteria publicly available in Switzerland on when the humanitarian clause or the sovereignty clause are implemented. The SEM is very reluctant to show in a transparent manner which criteria are decisive for the application of the sovereignty clause. The Federal Administrative Court’s competence to examine the SEM’s decision regarding humanitarian reasons is very limited, which leads to less jurisprudence and transparency on the issue. However, the Court sent some cases back to the SEM, because it had failed to consider whether or not to apply a discretionary clause.

In the case of a woman whose parents were recognised as refugees in Switzerland and who herself was in a very bad state of health, the Federal Administrative Court recognised a mutual dependency between the daughter and her parents to such an extent that non-application of Article 16 of the Dublin Regulation could not be justified; the SEM was ordered to proceed with the material assessment of the applicant’s asylum claim under the national procedure.^[6]

The sovereignty clause is used only in exceptional cases and is usually based on Article 29a(3) AO1. According to Swiss case law,^[7] the interpretation of humanitarian reasons should be similar to the interpretation of the humanitarian clause of the Dublin Regulation.^[8] Therefore, a sharp distinction cannot be made between the grounds mostly accepted by Swiss authorities to use the sovereignty clause and grounds mostly accepted to use the humanitarian clause. In most cases in which Switzerland decides to examine an application even if another state is responsible, the cases concern EU Member States with problematic conditions. Another category are particularly vulnerable persons, for example families (especially single mothers with children) or persons with severe medical problems that run a high risk of not receiving the essential care because of the deficiencies of the reception conditions or of the asylum system in the responsible Member State.^[9] However, the threshold for the application of the humanitarian clause is high. A high risk of detention in case of a transfer back to the responsible state has also been stated as a reason.

In the case of an Eritrean asylum seeker who had a child with an Eritrean national residing in Switzerland who was granted temporary admission (“F refugee permit”) the SEM simply asked the Italian authorities for guarantees regarding the availability of care for the mother and her baby. In the Court’s view, the SEM was wrong not to consider the father-child relationship at all and not to consider the proportionality between the removal order and the child’s best interests sufficiently. The case was referred to the SEM, which will have to rule on the application of the sovereignty clause in relation to Article 8 ECHR.^[10] In a leading case judgment, the Federal Administrative Court stated that asylum seekers in Dublin procedures can evoke Article 8 ECHR if they have family members with a temporary admission in Switzerland. The temporary admission status will then be taken into account as one of the factors when deciding on the balance of interests in the sense of Article 8(2) ECHR.[11] This is a new development for Dublin constellations, as Swiss practice in other areas generally considers a “stable residence status” in Switzerland as a prerequisite for evoking Article 8 ECHR and thus for examining Article 8 (2) ECHR, a temporary admission usually not being considered stable enough (except in special individual circumstances).

Several complaints regarding victims of human trafficking were decided by the Federal Administrative Court. In the case of a woman from Ethiopia, who was a victim of human trafficking in Kuwait and whose asylum application was rejected by the SEM because of the responsibility of France, the Court stated that the complainant had not presented a concrete and serious risk that would lead to the conclusion that the French authorities would refuse to take her in and consider her application for international protection.^[12]  Nor did the court see any concrete evidence that the woman could become a victim of re-trafficking in France. The public prosecutor’s office did not take on the criminal complaint filed in Switzerland. The court stated that it would be welcome if the SEM received assurances from the French authorities regarding access to the protection system for victims of human trafficking, as this could help to reduce understandable fears of the applicant from being transferred. In another case – also Dublin-France – the Federal Administrative Court upheld the complaint of a woman from Cameroon who was forced into prostitution in France. The Court found that the SEM had underestimated its discretion and, by using the inexact and empty phrase “in consideration of the file and the circumstances you have invoked, there are no grounds justifying the application of the sovereignty clause of Switzerland”, it completely disregarded the fact that there were concrete indications that the vulnerability of potential victims of human trafficking in France could not always be adequately taken into account.^[13]

In 2021, the SEM applied the sovereignty clause in 672 cases, compared to 546 cases in 2020 and 859 cases in 2019. In 2021, 538 cases concerned applications for which Greece would have been competent according to the Regulation, 50 Italy and 39 Croatia.[14]

These figures show that, like the family criteria, the humanitarian clause and the sovereignty clause are only rarely applied by Switzerland.^[15] Despite continuous joint efforts by a large number of Swiss NGOs, united under the “Dublin Appell” coalition, the application of the humanitarian clause or the sovereignty clause to cases of vulnerable asylum seekers remains extremely restrictive.^[16]

Procedure

The SEM has to transmit the fingerprints of applicants to the Central Unit of the Eurodac System.^[18] The Federal Council has the possibility to provide exceptions for children under the age of 14.^[19] In practice, all applicants over 14 years of age are systematically fingerprinted and checked in Eurodac after the registration of their application in Switzerland. This applies to all asylum procedures carried out in Switzerland, regardless of where an application is filed. The Dublin procedure is systematically applied in all cases where the data check or other indications suggest that another Dublin Member State is responsible for examining an asylum application.^[20]

The Federal Administrative Court ruled that if a person fails to cooperate with fingerprinting, this can be considered as a severe violation of the duty to cooperate according to the Asylum Act. This is also the case if the asylum seeker wilfully destroys the skin of his or her fingertips. However, the SEM must clarify with an expert whether or not the modification of the fingertips was wilful or due to external influences.[21] Article 8(3-bis) of the Asylum Act states that persons who fail to cooperate without valid reason lose their right to have the proceedings continued. Their applications are cancelled without a formal decision being taken and no new application may be filed within three years; the foregoing is subject to compliance with the Refugee Convention of 28 July 1951. So far, no such cases are known to the Swiss Refugee Council.

If another Dublin State is presumed responsible for the examination of the asylum application, the applicant concerned is granted the right to be heard.^[22] This hearing can take place either orally or in writing^[23] and provides the opportunity for the applicant to make a statement and to present reasons against a transfer to the responsible state. In practice, the right to be heard is mostly only granted once and is carried out orally. If a Eurodac hit is found or other evidence is available, the right to be heard is already granted during the first interview conducted by the SEM.

It seems problematic that the applicant is confronted with this question solely at this stage of the procedure, when the responsibility has not yet been fully established. At this point in time, the presumed responsible state has not yet received the request by the Swiss authorities to take charge or take back the applicant. This means that the right to be heard is granted at a moment when consultations between Member States in the Dublin procedure have not even started yet. This deprives the applicant of procedural rights as, according to the Court of Justice of the European Union (CJEU) in MM, the authorities are “to inform the applicant that they propose to reject his application and notify him of the arguments on which they intend to base their rejection, so as to enable him to make known his views in that regard.”[24] The right to be heard cannot effectively be exercised as long as the intended outcome of the Dublin procedure is not clear. According to the MM standard, the applicant should be able to provide his or her views in the light of an intended concrete decision: “The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely.”[25]

In principle, the applicant is entitled to access to the files relevant for the decision-making.^[26] Access can only be refused if this would be contrary to essential public interest, essential private interests or interests of non-completed official investigations.^[27] In general, access to the files is not granted automatically, but only upon explicit request. However, in case of an inadmissibility decision (and all Dublin transfer decisions are inadmissibility decisions), copies of the files are annexed to the decision if enforcement of the removal has been ordered.^[28] The files should include information about the evidence on which the take back request was made and the reply of the concerned Member State. In case of Dublin transfer decisions, the SEM notifies the decision to the service provider tasked with providing legal representation, who shall inform the legal representative on the same day,^[29] who will inform the person concerned.

According to Article 37 AsylA, the notification of a Dublin decision should occur within three working days after the requested has agreed to take charge or take back the applicant. In 2021, this deadline was not respected, notifications took place on average 23 days after the answer of the requested state.[30]

Individualised guarantees

In a first national leading case judgment regarding the Tarakhel judgment,[31] the Swiss Federal Administrative Court specified that the individual guarantees are a substantive precondition for the legality of the Dublin transfer decision according to international law, and not only a transfer modality, as the SEM had repeatedly claimed. Therefore, the guarantees must be provided at the moment of the Dublin transfer decision by the first instance decision, so that the applicants can make a statement regarding those guarantees in their appeal to the Federal Administrative Court.  Since 2015, the FAC considers a guarantee as sufficient if the Italian authorities confirm the fact that the applicants in the concrete case constitute a family, mentioning the names and ages of all family members as well as providing a list of the Protection System for Asylum Seekers and Refugees (SPRAR at the time, now SAI) projects in Italy in which a number of places had been reserved for families returned under Dublin, as well as by accepting that the applicants in the concrete case constituted a family, mentioning the ages of all family members.[32]

Following the amendments in Italian asylum legislation introduced since October 2018 through the so-called Salvini decree, asylum seekers were no longer entitled to live in SPRAR centres.[33] On 8 January 2019, a circular letter was sent from the Italian Dublin Unit to all Member States – replacing the circulars issued since 8 June 2015 – stating that families would no longer be placed in SPRAR centres but in first reception centres and emergency reception centres. The Federal Administrative Court ruled in a reference judgment that such guarantees were not specific enough, as families requiring transfer from Switzerland to Italy no longer had access to the second-line reception centres under the new legislation.[34] Due to the new legislation, in 2019 and 2020 Italian authorities have been required to submit even more specific guarantees concerning reception conditions in each individual case regarding families or seriously ill asylum seekers who will be reliant on seamless medical care from the moment they arrive in Italy.[35] In case of pregnant women, individual guarantees are needed depending on the stage of pregnancy and health situation.[36] In April 2020, Italian authorities provided a new list of accommodation centres that were specific for families, but the Court stated that this was not sufficient individual guarantee within the meaning of Tarakhel case law.[37]

As Salvini’s successor Luciana Lamorgese largely reversed Salvini’s legislative changes by decree in December 2020, a new Circular letter was sent to the other Dublin states on 8 February 2021. It informed that families would have the possibility of being accommodated in SAI accommodation, but that the services of the initial reception centres would also be extended again in such a way that accommodation in such a centre would be compatible with the requirements of the Tarakhel ruling. In another reference judgment, the Court expressed itself regarding this change for families. In the relevant case, the complainant travelled to Italy in 2019 on a visa and from there on to Switzerland, where she gave birth to her son. One month before the non-entry decision from the SEM, the latter had obtained an updated nucleo familiare form from the Italian authorities with the assurance of adequate, family-friendly accommodation. This, together with the circular of 8 February 2021, was judged to be a sufficient guarantee, arguing that the services of the initial reception centres had been expanded and that families had priority when being assigned to a SAI centre, and the complaint was rejected.[38] The Swiss Refugee Council criticised this decision.[39]

The Tarakhel jurisprudence was originally applied only in the case of families in the Dublin procedure and not for other categories of persons.[40] Until 2019, there had been only two exceptions in which the Court had asked for individual guarantees regarding reception conditions and access to medical treatment for mentally ill persons (not families) and regarding Hungary and Slovenia (not Italy).[41] In December 2019, taking into account the changes in the Italian legislation introduced by the Salvini Decree (Decree 132/2018), the Court extended the need to obtain individual guarantees from Italian authorities to the cases of applicants with serious health problems: such guarantees include both adequate accommodation and immediate access to medical care.[42] Following that jurisprudence, a number of cases were referred back to the SEM for further instruction with the requirement of obtaining individual guarantees from Italian authorities.[43] One of these cases concerned a pregnant woman considered vulnerable,[44] while another concerned a victim of trafficking.[45] The Court issued a similar decision in a Dublin case regarding Greece (as of 2020 only applying to persons with a Greek visa): in cases of seriously ill applicants, the SEM must obtain individual guarantees from Greek authorities concerning the immediate access to medical care after transfer.[46] The Court has also required from SEM obtaining individual guarantees in a case concerning a Dublin transfer to Spain.[47]

Whereas 36 families and single parents with children were transferred to Italy under the Dublin Regulation in 2017,[48] the number was 35 families and single-parent families in 2018 and only three families in 2019.[49] In 2021 as well as in 2020, no families were transferred to Italy, which is probably due in part to the travel restrictions related to the COVID-19 pandemic (in the whole year 2021, 294 asylum seekers were transferred to Italy altogether, compared to 176 in 2020 and 610 in 2019).[50] The families, as all persons in a Dublin procedure, are not granted the right to be heard regarding the guarantees before the first instance decision.[51] The only moment they can make a statement regarding the guarantees is therefore if they appeal against the transfer decision.

So far it is not transparent how the individual guarantees for families – as well as vulnerable and ill applicants – will actually be implemented after a transfer. In order to document the proceedings in individual cases, in 2016 the Swiss Refugee Council and the Danish Refugee Council started a joint monitoring project (Dublin Returnees Monitoring Project, DRMP)[52] to follow up on what happens to individual families and vulnerable persons after their transfer to Italy. The first report focused on families and single parents and showed that the treatment the monitored families received upon arrival in Italy varied greatly.[53] In some cases, the transferred families could only be accommodated after a certain period of time and after the intervention of third parties. There seemed to be arbitrary or at least unpredictable practice as to which kind of assistance the returned families would get from the Italian authorities. Furthermore, the quality of the accommodation provided varied considerably. The cases show that the relevant regional authorities and/or responsible persons of the reception facility were not always informed in advance of the medical condition and special needs of the applicants. Therefore, it cannot be guaranteed that families returned to Italy will be accommodated in line with the preconditions set out in Tarakhel.

The DRMP will continue to document the situation of Dublin returnees in Italy without participation of the Danish Refugee Council at least until the end of 2022, focusing on the effects of the legislative changes for persons returned to Italy under the Dublin Regulation.

On 11 February 2020, the Federal Administrative Court has made a reference judgement on the question of systemic deficiencies in Bulgaria.[54] Although the Court itself explained in a very detailed manner the problems in the Bulgarian asylum system, it concluded that there are no systemic flaws in the asylum procedure and reception conditions in Bulgaria which would justify a complete suspension of transfers to that country. A case-by-case examination will be required to determine whether or not the transfer to that country of a particular asylum seeker should be suspended. The court also mentioned the possibility to request individual guarantees from the Bulgarian authorities.

According to the SEM, in 2021 it took on average 23 days to issue a Dublin decision after the receipt of a positive answer from the requested Member State.[55] According to the same source, on average 326 days passed between the Dublin transfer decision and the actual transfer. One reason for this long delay could be the prolongation of the transfer deadline in case of a suspension of the execution because of an appeal. The transfer could then be further delayed if the Federal Administrative Court sent the case back to the SEM for additional clarifications and a new decision, which in turn can be appealed again.

According to the Foreign Nationals and Integration Act, an applicant may already be detained during the preparation of the decision on residence status under certain circumstances. Applicants within a Dublin procedure may be detained if there are specific indications that the person intends to evade removal. The Federal Administrative Court as well as the Federal Supreme Court have defined some important basic rules for detention in Dublin cases (see section on Grounds for Detention). The use of detention differs between cantons. In 2021, a total of 911 persons were placed in detention for the purpose of the Dublin III Regulation. 692 Dublin transfers took place from detention.[56]

As the Dublin III Regulation is directly applied in Switzerland, voluntary transfers should in principle be possible,^[57] however they always take place under control of the authorities. In 2020, 86 voluntary transfers took place; no data was provided for 2021. By way of comparison, for both test centres of Zurich and Boudry, this figure reached 65 in 2018.[58] Since the leading decision of the Federal Administrative Court of 2 February 2010, the transfer can no longer be enforced immediately after the notification of the decision, even if appeals against Dublin transfer decisions have no suspensive effect. A time limit of five days must be granted, allowing the applicant concerned to leave Switzerland or to make an appeal and to ask for suspensive effect.^[59] This case law has since been codified in the Asylum Act.[60] As a result, there are at least ten working days between the date of the opening of the Dublin decision and the enforcement of the removal. In a decision to strike out the application from the list of cases, the ECtHR considered the access to an effective remedy in Dublin cases in Switzerland sufficient.[61] This decision was problematic because the ECtHR based it on a wrong interpretation of Swiss law: it cited the provision in the Asylum Act that relates to non-Dublin-cases, in which the asylum seeker can stay on Swiss territory until the end of the proceedings. On the contrary, in Dublin cases this is precisely not the case, as there is no automatic suspensive effect.

Personal interview

The SEM carries out the whole first instance procedure and is also responsible for conducting the interviews with the applicants during the asylum procedure, including the Dublin procedure.

During the preparatory phase, the applicant undergoes a short preliminary interview (see section on Personal interview) focusing mainly on the identity and the journey to Switzerland. The SEM is allowed to ask summarily on the reasons for seeking asylum but it rarely does it during the Dublin interview.^[62] The interview is conducted in the presence of the applicant’s legal representative and is usually translated over the phone by an interpreter if necessary.^[63] The interview is recorded in writing in the form of a summary indicating the duration of the interview and is retranslated before being signed by the applicant and his/her legal representative. In 2021, the SEM conducted 4,509 Dublin interviews.[64]

The health emergency due to the COVID pandemic has slightly modified the conditions of interview (see section on Regular Procedure).

If the SEM intends to take a Dublin transfer decision (inadmissibility decision), the applicant is granted the right to be heard at the end of the personal interview,^[65] and he or she does not get a second interview regarding the grounds for asylum. The omission of the second interview in cases of Dublin and other inadmissibility decisions constitutes the fundamental difference between the personal interview within the Dublin procedure and the personal interviews within the regular asylum procedure (accelerated and expanded) where the application is examined in substance (see section on Regular Procedure).

Appeal

In case of a Dublin transfer decision (inadmissibility decision), an appeal can be submitted – as in all the other cases – to the Federal Administrative Court. The time limit to lodge an appeal against a Dublin transfer decision is five working days.^[66] No extension of such deadline is foreseen by the Ordinance COVID-19 Asylum.

Contrary to other asylum appeals, appeals against Dublin transfer decisions (inadmissibility decisions) do not have automatic suspensive effect. However, as previously mentioned, transfers cannot be enforced immediately after the notification of the decision. A delay of five working days must be granted.^[67] This allows the concerned applicant to make an appeal and to request that the execution of the appealed decision be suspended. The Court has to decide on the suspensive effect within another five working days.^[68]

In the appeal procedure (applies also to the Dublin procedure), the Federal Administrative Court has the possibility to order a hearing if the facts are not clear enough.^[69] In practice, it does not make use of this possibility.

To a certain extent, the Court takes into account the reception conditions and the procedural guarantees in the responsible Member States. This is reflected in different leading case decisions as well as other decisions of the Court, notably concerning Dublin Member States such as Greece, Hungary, Italy, Croatia or Bulgaria.

However, the Court can only examine errors of law, not whether or not the decision of the determining authority was “appropriate” (see section on Regular Procedure). This limitation is very relevant in the Dublin procedure. Many Dublin cases do not fall under the compulsory criteria of the Dublin III Regulation or under Articles 3 or 8 ECHR. Therefore, especially in cases regarding family ties that fall outside those strict definitions, the interpretation of humanitarian reasons for which Switzerland can apply the sovereignty clause becomes crucial.

The Court stated that it is a question of “appropriateness” where the SEM has a margin of appreciation, whether there are humanitarian reasons for applying the sovereignty clause. As long as SEM decides within this margin, the Court cannot examine whether the decision was appropriate. For example, in one case an Afghan mother and her minor son travelled to Switzerland via Bulgaria. The older son/brother lives in Switzerland based on a temporary admission. Because the brother with protection status in Switzerland was already an adult, the SEM decided to send the mother and younger brother back to Bulgaria, despite the fact that the applicants claimed that the younger brother needed the support of his older brother. The Court confirmed this decision: it admitted that the criteria according to which the SEM had examined the humanitarian reasons were strict, however, they were objective and clear. Therefore, the Court could not examine the decision by the SEM.[70]  However, the SEM has to examine and motivate the use of the sovereignty clause.

Nevertheless, the Federal Administrative Court confirmed in a leading case decision of 21 December 2017 that the asylum seeker can rely on the correct application of the Dublin responsibility criteria, as an individual right, in line with the CJEU jurisprudence in Ghezelbash and Mengesteab.[71]

Legal assistance

Free legal assistance is ensured at first instance since the entry into force of the new asylum procedure in March 2019.^[73] Therefore, in the Dublin procedure just as in the regular procedure, state-funded (but independent) free legal assistance is guaranteed to all applicants.

With the introduction of the new asylum procedure, access to legal assistance should have theoretically been facilitated for persons who ask for asylum in detention or prison. However, despite clear case law[74] from the Federal Administrative Court saying that legal representation must be guaranteed in those cases, the SEM still does not systematically provide representation. Further, it does not seem to be clear, under which competence these cases would fall, if they are to be represented by the legal representatives in the Federal centres or by those responsible for the extended procedure in the cantons. For further information, see the general chapter on Legal assistance in the regular procedure.

The relatively short time limit of five working days for lodging an appeal against a Dublin transfer decision constitutes a real obstacle to appealing, especially under the circumstances relating to the COVID-19 pandemic. This is even more problematic in cases where the mandated legal assistance decides not to appeal as it considers that lodging an appeal would be doomed to fail. In those cases, applicants could theoretically approach a non-state-funded entity for legal advice to ask for support. However, this is very difficult due to the remote locations of federal centres, given that most independent legal advisory offices are situated in urban areas. Additionally, if a lawyer of one of those offices decides to appeal, the time to gather all information needed is extremely short.

Suspension of transfers

In general, if transfers to other Dublin Member States are suspended, it is because of the application of the sovereignty or the humanitarian clause. The asylum application of the person concerned is then materially examined in Switzerland.

Greece: In November 2017, the SEM announced a reinstatement of Dublin procedures for cases in which the person was in possession of a Greek visa. This does not apply to vulnerable persons. [75] This means that in most of the cases Switzerland still relinquishes transfers to Greece and applies the sovereignty clause.

On the other hand, if the person already has a protection status in Greece (and therefore does not fall under the Dublin Regulation, but under the safe third country clause), the Swiss authorities are generally of the opinion that the person can be transferred there. For this purpose, a bilateral readmission agreement is used. This has also been the case with vulnerable persons.[76] For example, the Federal Administrative Court even confirmed the transfer of a psychologically fragile mother with four daughters (one of which was suicidal) who fled Greece because of the violent husband/father.[77] Only in a few cases, the Court asked the SEM to further clarify the situation of the individual applicant after return to Greece, in order to examine whether the transfer decision should be upheld.[78] The recent changes in Greek legislation, which have further worsened the conditions for beneficiaries of international protection in Greece, have not led to a major change of practice of the Court, that remains extremely restrictive.[79] However, the assessment of the medical situation of applicants has become particularly important due to difficulties in accessing health care in Greece, so that the Court has cancelled some decisions, requiring from SEM to provide a further medical instruction.[80]

According to SEM statistics, one transfer took place to Greece under Dublin and 24 persons were transferred under the readmission agreement in 2021, compared to no persons transferred under Dublin and 21 under the readmission agreement in 2020.[81] The agreement applies to persons having received international protection in Greece. The SEM applied the sovereignty clause in 538 cases in 2021, compared to 441 in 2020.[82]

Hungary: In May 2017 the Federal Administrative Court issued a reference judgment in which it summarised the latest developments in the Hungarian asylum system and the effects on Dublin returnees.[83] The Court highlighted the responsibility of the SEM to gather all elements necessary for the assessment and that it was not the responsibility of the appeal authority to carry out complex supplementary investigations. Otherwise, the Federal Administrative Court would overstep its jurisdiction with a decision on the merits of the matter and deprive the party concerned of the legal right of appeal. Therefore, the Court annulled the contested decision and referred it back to the SEM for a full determination of the facts and a new decision, which resulted in the initiation of the national procedure in all cases known to the Swiss Refugee Council.

According to SEM statistics, there were no transfers to Hungary under Dublin in 2021, just as in 2020, 2019 and 2018. On the other hand, in 2021 there were 4 transfers under the bilateral readmission agreement between Switzerland and Hungary.[84] The agreement applies to persons having received international protection in Hungary.

Italy:[85] Overall in many cases the Swiss practice regarding Italy is still strict and the judges still state that there are no systemic deficiencies. The sovereignty clause is only applied in cases of very vulnerable persons, or in case of a combination of different special circumstances. According to the latest reference judgement,[86] the form nucleo familiare with name and age information, recognition of the family unit and assurance of family-friendly accommodation together with the circular letter assuring accommodation in the second reception system SAI (current circular dated 8 February 2021) is considered as sufficient guarantees for the transfer of families to Italy (for further information see also the section on Individual guarantees above under Procedure).

In January 2020, the Swiss Refugee Council published a report on the reception conditions in Italy, focusing on the situation of Dublin returnees in Italy. It showed that the legislative changes had led many obstacles in accessing adequate accommodation and health care.[87] Following the legislative changes of Luciana Lamorgese, the Swiss Refugee Council together with the organisation borderline-europe, updated its report to clarify which changes occur in practice and which changes remain theoretically so far.[88]

The Swiss Refugee Council will continue to document transfers to Italy in 2022 within the framework of the Dublin Returnee Monitoring Project (DRMP).[89] Individual cases can be reported or referred to it.

Bulgaria: Dublin decisions are generally issued in cases concerning Bulgaria, even in the case of families and vulnerable persons.[90] In a decision from September 2017,[91] the Court implied doubts about the procedure leading up to the rejection of the applicant’s claim in Bulgaria. After an earlier asylum application was rejected by Germany, the applicant was deported by Germany to his country of origin Morocco in 2013 and tortured there for three and a half months. Subsequently he applied for asylum in Bulgaria, where he received another negative decision. Before his removal to Morocco, he moved on to Switzerland, where he applied for asylum. Neither the SEM nor the Court had access to the negative decision from the Bulgarian authorities, when assessing his asylum application under the Dublin procedure. The Court stated:

“It is therefore not possible to ascertain whether and to what extent the Bulgarian authorities have examined the complainant’s allegations of torture, which are an important indication of a concrete and serious danger of renewed torture, and to what extent they have reached this conclusion. The contrary assertion of the lower instance must be qualified as a mere guesswork prior to this situation. The Federal Administrative Court considers the complainant’s allegations that he has been tortured in his home country to be credible in the current file situation and regards it as an important indication that he is likely to face the concrete and serious danger of renewed torture on his return to Morocco. It cannot therefore be ruled out that, in the case of a transfer of the complainant to Bulgaria, Switzerland may be in danger of breaching the principle of non-refoulement, which is why it is advisable that Switzerland starts the national asylum procedure. A transfer to Bulgaria is not permitted.”[92]

In 2018, the Court stated it cannot ignore the number of observer reports denouncing the persistence of serious problems in Bulgaria and that requests from nationals of certain nationalities are “almost systematically” considered unfounded (e.g. nationals of Algeria, Bangladesh, Pakistan, Sri Lanka, Turkey and Ukraine with a 0% acceptance rate). Afghan nationals are subject to a similar approach with an acceptance rate of 1.5% and there are doubts as to whether the claimant has been heard on his or her asylum grounds and travel itinerary.[93] In another judgement the Federal Administrative Court stated that although there were no structural deficiencies, the reception conditions in Bulgaria (and in particular the livelihood, access to the health system, excessive use of force, detention and refusal) were poor and that the transfer of vulnerable asylum seekers could be problematic (and therefore a reason for applying the sovereignty clause).[94] In 2021, the outcome of the judgements regarding Bulgaria was mixed, 7 transfers were carried out (compared to none  in 2020).[95]

On 11 February 2020 the Court issued a reference judgement on the question of systemic deficiencies in Bulgaria.[96] Although the Court itself explained in a very detailed manner the problems in the Bulgarian asylum system, it concluded that there were no systemic flaws in the asylum procedure and reception conditions in Bulgaria which would justify a complete suspension of transfers to that country. A case-by-case examination will be required to determine whether the transfer to that country of a particular asylum seeker should be suspended. The court also mentioned the possibility to request individual guarantees from the Bulgarian authorities. In April 2020, the Court ruled, in a case concerning a family, that the SEM had not sufficiently examined the reception conditions in Bulgaria and would need to require individual guarantees of adequate accommodation for the family.[97] In the positive judgments of 2021, the SEM failed to examine the medical situation sufficiently and in the case of a family, the national procedure was ordered also due to the length of the procedure without fault of the applicants.[98]

Malta: According to its own manual,[99] the SEM does not transfer vulnerable asylum seekers to Malta if they are facing detention. One transfer took place to Malta under the Dublin Regulation in 2021, compared to none in 2020.[100]

Croatia: In a reference judgment of July 2019, the Federal Administrative Court commented on the problem of push-backs of asylum seekers to the Croatian-Bosnian border and stated that the SEM is obliged to examine the existence of systemic deficiencies and to take the general situation in Croatia as well as the individual claims of the applicant into account.[101] Following this, the outcome of the judgements were mixed, some have been sent back to the SEM for further clarifications regarding health care for single men, some others regarding families with health issues were rejected. The Court generally considers the argument of push-backs relevant in cases of ‘take charge’ where the Dublin returnee would still need to file an asylum application.[102] In cases of ‘take back’, where persons have already applied for asylum in Croatia, it is generally assumed that they will not be in danger of being object of push-backs.[103] 15 persons have been transferred to Croatia under Dublin in 2021, compared to 4 transfers in 2020.[104]

The situation of Dublin returnees

Dublin transfers to Switzerland are mainly enforced by air to the airports of Zurich, Geneva and Basel, but they can also take place by land from neighbouring countries.

Dublin returnees are received by the police at the airport or the border post. If the person has been transferred according to a ‘take back’ request, meaning that they have already applied for asylum in Switzerland in the past, they will have to report to the migration authorities of the canton to which they had been attributed (if such attribution had already taken place), regardless of the state of the procedure. The procedure will then be resumed, if there has not yet been a negative decision on the merits. If the person is transferred according to a ‘take charge’ request, meaning that they do not have applied for asylum in Switzerland before, they have to report to the federal asylum centre which the police indicates to them. The police give the person a public transport ticket to facilitate the journey to the cantonal migration office or the federal asylum centre. If the person has health problems that require the organisation of a transfer, either the canton or the federal asylum centre will organise the transfer from the airport or border post.[105]

No obstacles for applicants transferred back to Switzerland under Dublin have been observed.

[1] Federal Administrative Court, Decision D-5785/2015, 10 March 2016.

[2] Federal Administrative Court, Decision E-6513/2014, 3 December 2015.

[3] Federal Administrative Court, Decision ATAF 2017/VI/1, 10 February 2017.

[4] Federal Administrative Court, Decision ATAF 2021 VI/1, 25 January 2021. See also: https://bit.ly/3HzQ3Cv.

[5] Federal Administrative Court, Decision E-5644/2009, 31 August 2010.

[6] Federal Administrative Court, Decision D-3566/2018, 28 June 2018.

[7] Federal Administrative Court, Decision E-7221/2009, 10 May 2011.

[8] Articles 16 and 17(2) Dublin III Regulation.

[9] For example: In Decision D-5221/2016, 31 October 2018 and Decision D-5407/2018, 31 October 2018, the Federal Administrative Court the cases were referred back to the SEM in order to do a proper examination of a possible use of the sovereignty clause. The cases concerned families with a Dublin decision to Bulgaria, where they had been ill-treated and detained by the authorities.

[10] Federal Administrative Court, Decision E-4936/2017, 19 February 2018.

[11] Federal Administrative Court, Decision E-7092/2017, 25 January 2021.

[12] Federal Administrative Court, Decision D-1372/2018, 29 November 2018.

[13] Federal Administrative Court, Decision D-1874/2019, 29 April 2019.

[14] Data provided by SEM on 1 April 2022.

[15] In November 2017, the Swiss Refugee Council and a broad coalition of NGOs submitted to the Federal Council the “Dublin call” (Appel de Dublin). This call urges the authorities to handle the asylum applications lodged by vulnerable persons. For further information, see the website of the coalition available (in French) at: http://bit.ly/2pFSRKW. 

[16] More information available in German at: https://bit.ly/2UhWFQq.

[17] Data provided by SEM on 1 April 2022.

[18] Article 102a-bis AsylA.

[19] Article 99 AsylA.

[20] Article 21(2) AsylA.

[21] Federal Administrative Court, Decision ATAF 2011/27, 30 September 2011.

[22] Article 36(1) AsylA.

[23] Article 29(2) Constitution.

[24] CJEU, Case C-277/11 MM, 22 November 2012, para 95.

[25] Ibid, para 87.

[26] Article 26 APA.

[27] Article 27 APA.

[28] Article 17(5) AsylA.

[29] Article 12a(2) AsylA.

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

[31] The ECtHR found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the Swiss authorities were to send an Afghan couple and their six children back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

[32] Federal Administrative Court, Decision D-4394/2015, 27 July 2015.

[33] Italian Law 132/1, 4 December 2018, converting Decree-Law 113/2018 into law.

[34] Federal Administrative Court, Decision E-962/2019, 17 December 2019.

[35] Federal Administrative Court Media release Stricter criteria for Dublin transfers to Italy, 17 January 2020, available at: https://bit.ly/2SY3vbG.

[37] Federal Administrative Court, Decision F-4872/2020, 5 November 2020, c. 4.4.

[38] Federal Administrative Court, Decision F-6330/2020, 18 October 2021.

[39] See press release of 22 October 2021, Le Tribunal administratif fédéral ignore la situation précaire des personnes requérantes d’asile en Italie, available in French (and German) at: https://bit.ly/3JRIBou).

[40] Confirmed by the Federal Administrative Court, leading case Decision D-2177/2015, 11 December 2017: Sri Lankan applicant with medical problems. However, in the individual case the Court ordered that the sovereignty clause must be applied due to the length of the procedure.

[41] Federal Administrative Court, Decision D-2677/2015, 25 August 2015 regarding Slovenia and a mentally ill person who needs special trauma treatment. Tarakhel was not directly mentioned in the decision, but the Court states the need for guarantees. Regarding Hungary and a traumatised man: Federal Administrative Court, Decision D-6089/2014, 10 November 2014.

[42] Federal Administrative Court, Reference Decision E-962/2019 of 17 December 2019, c. 7.4.3.

[43] Federal Administrative Court, Decisions D-4067/2019 of 14 January 2020, D-1869/2019 of 22 January 2020, D-552/2020 of 5 February 2020, E-6810/2016 of 11 March 2020, F-2751/2019 of 17 March 2020, D-5952/2020 of 4 December 2020.

[44] Federal Administrative Court, Decision F-2393/2020 of 13 July 2020. However, pregnant women do not automatically fall under vulnerable applicants according to the Court, see Decisions Decisions E-406/2015 of 2 April 2015, D-4978/2016 of 6 September 2016 and E-1026/2020 of 4 March 2020. In one case, the Court also stated that the unborn child cannot rely on the Convention on the Rights of the Child, Decision E-406/2015 of 2 April 2015.

[45] Federal Administrative Court, Decision E-543/2020 of 16 March 2020.

[46] Federal Administrative Court, Decision F-1850/2020, 6 March 2020, c. 4.2.

[47] Federal Administrative Court, Decision E-3259/2019, 8 October 2019, c. 6.7.

[48] Information provided by the SEM, 18 January 2018.

[49] Information provided by the SEM, 12 February 2020.

[50] Information provided by the SEM, 19 March 2021. Statistics available on the website of the SEM.

[51] Information provided by the SEM, 9 September 2015.

[52] Further information to be found on the website of the Swiss Refugee Council: https://bit.ly/3a3gf9x.

[53] Danish Refugee Council and Swiss Refugee Council, Is mutual trust enough? The situation of persons with special reception needs upon return to Italy, 9 February 2017, available at: http://bit.ly/2l2Wd7m; the second report from the Danish Refugee Council and the Swiss Refugee Council, Mutual trust is still not enough. The situation of persons with special reception needs transferred to Italy under the Dublin III Regulation, was published on 12 December 2018, available at: https://bit.ly/2QMvonZ.

[54] Federal Administrative Court, Decision F-7195/2018, 11 February 2020.

[55] Information provided by the SEM, 19 March 2021.

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

[57] Article 29 Dublin III Regulation.

[58] Information provided by the SEM, 22 February 2019. In 2020, the SEM informed us that there had not been any voluntary transfer, which was probably incorrect and rather related to a lack of data.

[59] Federal Administrative Court, Decision E-5841/2009, 2 February 2010.

[60] Article 107a AsylA.

[61] ECtHR, M.G. and E.T. v. Switzerland, Application No 26456/14, 17 November 2016.

[62] Article 26(3) AsylA.

[63] Article 19(2) AO1.

[64] Data provided by the SEM, 1 April 2021.

[65] Article 36 AsylA.

[66] Article 108(3) AsylA.

[67] Article 107a(2) AsylA; Federal Administrative Court, Decision E-5841/2009, 2 February 2010.

[68] Article 107a AsylA.

[69] Article 14 APA.

[70] Federal Administrative Court, Decision D-3794/2014, 17 April 2015.

[71] Federal Administrative Court, Decision E-1998/2016, 21 December 2017.

[72] Since the start of the reformed Swiss asylum procedure on 1 March 2019, free and independent legal assistance is provided at first instance for every asylum seeker.

[73] Article 102f AsylA.

[74] Federal Administrative Court, Decision D-5062/2021, 24 November 2021.

[75] Federal Administrative Court, Decision F-1850/2020, 6 May 2020, c. 4.2.

[76] Despite worrying documentations of the situation after the return of persons with status in Greece, e.g. Refugee Support Aegean and Pro Asyl, , Stellungnahme zur aktuellen Situation von international Schutzberechtigten in Griechenland, April 2021, available in German at https://bit.ly/3t9f6Zm; Legal note: Beneficiaries of international protection in Greece – Access to documents and socio-economic rights, March 2021, available in English at: https://bit.ly/3q8nkiy.

[77] Federal Administrative Court, Decision D-206/2016, 10 February 2016.

[78] Federal Administrative Court, Decisions E-6347/2014, 20 November 2014 and E-1192/2014, 17 March 2014.

[79] Federal Administrative Court, Decision D-559/2020 of 13.02.2020, considered by the Court a “reference decision” according to which removal of beneficiaries of protection to Greece is generally lawful.

[80] Federal Administrative Court, Decisions D-705/2020 of 22 February 2020, D-2041/2020 of 28 April 2020, D-2676/2019 of 19 August 2020.

[81] SEM, asylum statistics 2021; asylum statistics 2020.

[82] Data provided by the SEM, 1 April 2022.

[83] Federal Administrative Court, Decision D-7853/2015, 31 May 2017.

[84] SEM, asylum statistics 2021, 2020;2019, 2018.

[85] Regarding reception conditions in Italy for Dublin Returnees and persons with international protection status please see: Swiss Refugee Council, Reception conditions in Italy – Updated report on the situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, in Italy, January 2020, available at: https://bit.ly/2SARryi.

[86] Federal Administrative Court, Decision F-6330/2020 of 18 October 2021.

[87] Swiss Refugee Council, Reception conditions in Italy: Updated report on the situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, in Italy, January 2020. Available in English at: https://bit.ly/2Mwz4cY.

[88] Swiss Refugee Council, Reception conditions in Italy – Latest developments. June 2021. Available in English at: https://bit.ly/3sZ0Ceq.

[89] Further information to be found on the website of the Swiss Refugee Council, available in English at: https://bit.ly/3zpOWCx.

[90] For example, in the case of a man who claimed to have been detained and mistreated in Bulgaria, with diabetes and psychological problems: Federal Administrative Court, Decision E-521/2016, 13 June 2016.

[91] Federal Administrative Court, Decision E-305/2017, 5 September 2017.

[92] Ibid, para E.2.

[93] Federal Administrative Court, Decision E-3356/2018, 6 May 2018.

[94] Federal Administrative Court, Decision D-6725/2015, 4 June 2018.

[95] SEM, asylum statistics 2021; asylum statistics 2020.

[96] Federal Administrative Court, Decision F-7195/2018, 11 February 2020.

[97] Federal Administrative Court, Decision D-5126/2018, 15 April 2020.

[98] Federal Administrative Court, Decision F-5634/2018, 23 April 2021.

[99] Manuel Asile et retour, C3 Procédure Dublin, available in French at: https://bit.ly/37ApcEc.

[100] SEM, asylum statistics 2021; asylum statistics 2020.

[101] Federal Administrative Court, Decision E-3078/2019, 12 July 2019. The Court cancelled the SEM’s decision of transfer a second time for the same asylum applicant with the judgement E-4211/2019 of 9 December 2019. In another case ((F-661/2020 of 7 February 2020), the Court argued in a very similar way that SEM had not sufficiently taken into account the already well-documented push-back problems and systemic deficiencies of the asylum procedures in Croatia. The case was also transferred back to the SEM for further instruction.

[102] Federal Administrative Court, Decision F-661/2020 of 7 February 2020, in which the Court argued similarly to the reference judgement that SEM had not sufficiently taken into account the already well-documented push-back problems and systemic deficiencies of the asylum procedures in Croatia. See also E-5830/2019 of 30 December 2019, E-4211/2019 of 9 December 2019, F-48/2021 of 8 January 2021.

[103] For a more detailed overview on the Swiss jurisprudence on Dublin-Croatia cases please see the document of 18 December 2021: https://bit.ly/3HBW2Xs (in German, soon also available in French).

[104] SEM, asylum statistics 2021; asylum statistics 2020.

[105] Information on the procedure for Dublin returnees has been provided by the SEM on 27 April 2021.