Dublin

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General

If the preliminary investigations in the preparatory phase 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.[1] 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.

Dublin statistics: 2021 (statistics for 2022 was not available at time of publication)

 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 2022 Switzerland issued a total of 8,008 take charge or take back requests to other Member States, compared to 4,904 in 2021, 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 May 2023.

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.[3] 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.[4]

The family criteria in particular are generally applied narrowly. The SEM’s practice regarding the effective relationship and the definition of family members in the Dublin III Regulation is strict.[5]

In a principle judgment of January 2021, the Court ruled for the first time regarding the established right of residence as a prerequisite for relying on Article 8 ECHR. It 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 life in Switzerland outweigh public interests in the transfer of a family member to the family member to the member state originally found responsible.[6]

The dependent persons and discretionary clauses

Article 16 of the Dublin Regulation has to be used if such a constellation is the case, if an actual dependency is given, Article 16 counts as further criteria to determine the member state responsible.[7]

According to the jurisprudence of the Federal Administrative Court, the sovereignty clause in Article 17 of the Dublin Regulation is not self-executing, which means that that applicants can only rely on the clause in connection with another provision of national law.[8] The clause must be applied though if the transfer to the responsible Dublin State would violate one of Switzerland’s international obligations, Article 29a(3) AO1 provides the possibility to apply the sovereignty clause on humanitarian grounds. There are no general criteria publicly available in Switzerland on when the humanitarian clause or the sovereignty clause are implemented. According to the Federal Administrative Court, the criteria must be transparent, objective and comprehensible.[9] 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 has sent some cases back to the SEM, notably because it had failed to consider whether or not to apply a discretionary clause (see section on Dublin: Appeal).[10]

According to Swiss case law,[11] the interpretation of humanitarian reasons should be similar to the interpretation of the humanitarian clause of the Dublin Regulation.[12] 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.[13] 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 (for further information see section on Dublin: Appeal).[14] 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 back to the SEM to rule on the application of the sovereignty clause in relation to Article 8 ECHR.[15]

In a leading case judgment, the Federal Administrative Court confirmed that asylum seekers in Dublin procedures can invoke 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.[16] This is a new development for Dublin, as Swiss practice in other areas generally considers a “stable residence status” in Switzerland as a prerequisite for invoking Article 8 ECHR and thus for examining Article 8 (2) ECHR, and a temporary admission usually not being considered stable enough (except in special individual circumstances).

In 2022, the SEM applied the sovereignty clause in 484 cases, compared to 672 cases in 2021, 546 cases in 2020 and 859 cases in 2019. In 2022, 332 cases concerned applications for which Greece would have been competent according to the Regulation, 31 Italy, 19 Poland, 16 Hungary and 14 Croatia.[17]

These figures show that, like the family criteria, the humanitarian clause and the sovereignty clause are only rarely applied by Switzerland.[18]

Procedure

The SEM has to transmit the fingerprints of applicants to the Central Unit of the Eurodac System.[20] The Federal Council has the possibility to provide exceptions for children under the age of 14.[21] 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.[22]

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 their fingertips. However, the SEM must clarify with an expert whether or not the modification of the fingertips was wilful or due to external influences.[23] 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 UN-Refugee Convention. So far, no such cases are known to the Swiss Refugee Council and persons who reappear after a few months are integrated back into the asylum procedure for now.

If another Dublin State is presumed responsible for the examination of the asylum application, the applicant is granted the right to be heard.[24] This hearing can take place either orally or in writing[25] and provides the opportunity for the applicant to make a statement and to present reasons against a transfer to the responsible state. Therefore, it must take place before the take charge or take back request is sent to the respective country. 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.

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, only upon explicit request. However, in case of an inadmissibility decision (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 state has agreed to take charge or take back the applicant. In 2022 this deadline was not respected, notifications took place on average 23.4  days after the answer of the requested state.[30]

Individualised guarantees

Italy

Since the Tarakhel judgment[31] of the ECtHR, families can only be transferred to Italy when their authorities guarantee the adequate housing and that the family will not be separated. 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. 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.[32] Therefore, the guarantees must be provided at the moment of the Dublin transfer decision (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 Federal Administrative Court 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.[33]

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.[34] 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.[35] 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.[36] In cases of pregnant women, individual guarantees are needed depending on the stage of pregnancy and health situation.[37] 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.[38]

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 had 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 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.[39] The Swiss Refugee Council criticised this decision.[40]

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.[41] 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.[42]  In 2022, this obligation was lifted again regarding take-charge procedures. For take-back procedures, guarantees are still required. The Court reasoned this with the risk of being excluded from accommodation in take-back cases.[43]

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)[44] 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.[45] 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 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 2023, focusing on the effects of the legislative changes for persons returned to Italy under the Dublin Regulation.

Bulgaria

On 11 February 2020, the Federal Administrative Court issued a reference judgement on the question of systemic deficiencies in Bulgaria.[46] 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. 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.[47]

Others

The Court had also asked for individual guarantees regarding reception conditions and access to medical treatment for mentally ill persons (not families) and regarding Hungary and Slovenia.[48] The Court further issued a 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.[49] The Court has also required from SEM obtaining individual guarantees in a case concerning a Dublin transfer to Spain.[50]

Transfers

According to the SEM, in 2022 it took on average 23 days to issue a Dublin decision after the receipt of a positive answer from the requested Member State.[51] Furthermore, on average 270 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, suspension which must be requested. 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. In 2022, of a total of 8,029 Dublin-out procedures, in 4,707 cases the requested member state answered positively, of those, 1,566 transfers took place.[52]

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: Dublin Procedure). The use of detention differs between cantons. In 2022, a total of 1,000 persons were placed in detention for the purpose of the Dublin III Regulation. 704 Dublin transfers took place from detention.[53]

As the Dublin III Regulation is directly applied in Switzerland, voluntary transfers should in principle be possible,[54] however they always take place under control of the authorities. The SEM does not gather information on the nature of the transfer.[55] Since the leading decision of the Federal Administrative Court in 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.[56] This case law has since been codified in the Asylum Act.[57] 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.[58] 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. To the contrary, in Dublin cases this is precisely not the case, as there is no automatic suspensive effect.

The cantons are in particular responsible for carrying out the Dublin-transfers ordered by the SEM. Article 89b AsylA provides that if a canton does not fulfil or only partially fulfils its obligations with regard to the execution of removal, without objective reasons, the Confederation may claim the reimbursement of fixed compensation already paid. Similarly, if this breach leads to an extension of the duration of the stay of the person concerned in Switzerland, the Confederation may waive the payment of these subsidies.[59]

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, all applicants undergo a short preliminary interview (see section on Personal interview) focusing mainly on their identity and journey to Switzerland. The SEM is allowed to ask summarily the reasons for seeking asylum but it rarely does so during this so-called Dublin interview.[60] The interview is usually conducted in the presence of the applicant’s legal representative and is usually translated over the phone by an interpreter if necessary.[61] 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 their legal representative. In 2022, the SEM conducted 5,484 Dublin interviews.[62]

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

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,[63] and they do 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 additional personal interviews within the regular asylum procedure (accelerated and expanded) where the application is examined in substance (see Regular Procedure: Personal Interview).

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.[64]

Contrary to other asylum appeals, appeals against Dublin transfer decisions (inadmissibility decisions) do not have automatic suspensive effect. However, as mentioned in Dublin: Procedure, transfers cannot be enforced immediately after the notification of the decision. A delay of five working days must be granted.[65] 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.[66] In practice, this is granted in almost all cases that cannot be decided upon immediately.[67]

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.[68] In practice, it does not make use of this possibility.[69]

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 , notably concerning Dublin Member States such as Greece, Hungary, Italy, Croatia or Bulgaria (see Dublin: Suspension of Transfers).

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: Appeal). 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. The SEM has to examine and motivate its reasoning for using or not using 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.

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.[73] Therefore, in the Dublin procedure just as in the regular procedure, state-funded (but independent) free legal assistance is guaranteed to all applicants (see also Legal Assistance).

Access to legal assistance is also available for persons who ask for asylum in detention or prison.  For further information, see the general chapter on Registration of the asylum application.

The relatively short time limit of five working days for lodging an appeal against a Dublin transfer decision constitutes a real obstacle to appealing. 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 the reinstatement of Dublin procedures for cases in which the person was in possession of a Greek visa. This does not apply to vulnerable persons. [74] 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. For families with children, the Court considers the execution of the removal order only to be reasonable if favourable conditions or circumstances exist. The legal presumption of the reasonableness of enforcing removal was no longer upheld by the Court in the case of persons who, due to their particularly high vulnerability, run the risk of being permanently placed in severe distress if they return to Greece, because they are not in a position to claim the rights to which they are entitled on the spot by their own efforts. The Court therefore considers the removal of extremely vulnerable persons entitled to protection, such as unaccompanied minors or persons whose mental or physical health is impaired in a particularly serious manner, to be unreasonable in principle, unless there are particularly favourable circumstances on the basis of which it can exceptionally be assumed that the removal is reasonable.[75]

According to SEM statistics, 3 transfers took place to Greece under Dublin and 30 persons were transferred under the readmission agreement in 2022, compared to one person transferred under Dublin and 24 under the readmission agreement in 2021.[76] The agreement applies to persons having received international protection in Greece. The SEM applied the sovereignty clause in 484 cases in 2022, compared to 538 in 2021.[77]

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.[78] The Court highlighted the responsibility of the SEM to gather all elements necessary for the assessment, 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 2022, just as in 2021, 2020, 2019 and 2018. On the other hand, in 2022 there were 6 transfers under the bilateral readmission agreement between Switzerland and Hungary which applies to persons having received international protection in Hungary, compared to 4 in 2021.[79]

Italy:[80] Swiss practice regarding Italy remains very strict and the Court still states 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. Guarantees have to be obtained from the Italian authorities in family cases,[81] as well as in take-back procedures for persons with serious health issues.[82]  (for further information see also the section on Individual guarantees above ).

Since December 2022 until at least 2 May 2023, no Dublin transfers to Italy could take place, following a communication from the Italian authorities to all Dublin Units claiming a lack of reception capacity. This concerns so far around 300 persons who could not be transferred from Switzerland.[83]

In February 2022, the Swiss Refugee Council published a report on the treatment of mental health problems of asylum seekers and beneficiaries of international protection in Italy. The report showed that there are no sufficient identification mechanism in place and there is no specialised and long-term treatment available. [84]

The Swiss Refugee Council will continue to document transfers to Italy in 2023 within the framework of the Dublin Returnee Monitoring Project (DRMP).[85] Individual cases can be reported or referred to it (for further information see also the section on Individual guarantees above ).

In 2022, 325 transfers to Italy took place, compared to 294 in 2021. Under the bilateral readmission agreement between Switzerland and Italy, 51 transfers to place in 2022, compared to 53 in 2021.[86]

Bulgaria:[87] Dublin decisions are generally issued in cases concerning Bulgaria, even in the case of families and vulnerable persons.[88] In a decision from September 2017,[89] the Court implied doubts about the procedure leading up to the rejection of the applicant’s claim in Bulgaria.

On 11 February 2020 the Court issued a reference judgement on the question of systemic deficiencies in Bulgaria.[90] 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. (for further information see also the section on Individual guarantees above).

In October 2022, the Court dealt[91] with a Dublin Bulgaria case, the Afghan complainant was suffering from health problems and drug addiction. He had been detained and mistreated in Bulgaria. The application for readmission to Bulgaria did not contain any information on the man’s health condition and remained unanswered. The SEM used text modules to state that there were no indications of systemic deficiencies in Bulgaria and that the country had sufficient infrastructure. On the one hand, the Court considered the legally relevant medical facts to be incomplete. It also states that it cannot be assumed without further ado that the conditions in Bulgaria meet the requirements of international law. Furthermore, in view of the protection quotas for Afghans in Bulgaria, the Court considered it questionable whether the Bulgarian authorities take sufficient account of the non-refoulement requirement. Furthermore, the SEM had failed to deal with the effects of the war in Ukraine. Next, the SEM was asked to comment on the admissibility and reasonableness of a transfer to Bulgaria against the background of the OSAR report on police violence in Bulgaria and Croatia[92].

In 2022, 3 Dublin transfers to Bulgaria took place, compared to 7 in 2021. Under the bilateral readmission agreement between Switzerland and Bulgaria, 2 transfers to place in 2022, compared to 1 in 2021.[93]

Malta: According to its own manual,[94] the SEM does not transfer vulnerable asylum seekers to Malta if they are facing detention. 4 transfers took place to Malta under the Dublin Regulation in 2022, compared to 1 in 2021. No transfer took place under the readmission agreement in 2022, compared to 1 in 2021. [95]

Croatia: In a reference judgment[96] of March 2023, the Federal Administrative Court assumed that persons will have access to the asylum procedure in Croatia, regardless of whether they are transferred to Croatia by means of a take back or take charge procedure. The court denied the existence of systemic deficiencies in the Croatian asylum system and clarified that a transfer should only be dispensed with in exceptional cases if it can be shown that the general assumption does not apply in the individual case.

The facts of the case: The complainant from Syria sought asylum in Switzerland on 29 March 2019. He entered the Dublin area via Croatia and, according to his own statements, had previously been deported to Bosnia 18 times under duress and ill-treatment by the Croatian authorities. Due to his registration in Croatia, the SEM requested a transfer based on Article 13(1) of the Dublin III Regulation (take charge), and Croatia agreed. The SEM then issued a non-admission decision, which was successfully challenged twice by the complainant, as the SEM had not fully ascertained the facts of the case.  In particular, the SEM was requested to clarify whether the Croatian asylum system had systemic deficiencies and to analyse the push-back practice; moreover, the SEM had not examined the complainant’s individual submissions with regard to a possible inadmissibility or unreasonableness of the transfer to Croatia. In March 2020, the SEM issued a NEE decision for the third time, and an appeal against this decision was again filed with the Federal Administrative Court. (FAC). The latter took three years to issue its reference judgement E-1488/2020 of 22 March 2023.)

The considerations: After a brief discussion of the concept of collective expulsion in consideration and the basic explanations on the basic assumption of mutual trust in the Dublin system, the actual core of the judgment is to be found in para. 9. The Court examines various sources on pushbacks and comes to the conclusion that in view of the numerous reports on prohibited pushbacks, it can be assumed with a very high degree of probability that inadmissible returns as well as violent and inhumane attacks on migrants are regularly practiced by the Croatian authorities. The Court further states that, in view of the reports, it must be assumed that Croatia is mainly a transit country for a considerable number of the persons seeking protection and that the majority of these persons have no interest in an asylum procedure in Croatia. Building on this, the court consults the case law of the ECtHR N.D. and N.T. v. Spain and refers to the “own culpable conduct test”, which under certain circumstances – despite the absence of individual clarifications – can lead to a denial of a violation of the prohibition if the migrating person is found to have acted wrongly.  An embassy report from 2019 (not public) is used to show that Dublin returnees will have access to the asylum procedure, and the court further states that there would be no reports or documented cases of Dublin returnees being unlawfully deported in Croatia by the date of the judgment.

Embassy report: Regarding the question of pushbacks, the SEM asked the Swiss embassy in Croatia to conduct an investigation. Decisions regarding Dublin Croatia cases in 2022 were amongst other based on those investigations, which are supposably proving that the problem of pushbacks is only relevant in the border region and should not affect Dublin returnees. The report of the embassy is not shared or publicly available, which makes it difficult to counter-argument and is in the view of the Swiss Refugee Council in breach of the right to be heard, as this would require the full inspection of the investigations of the embassy. Further, the Croatian NGO Centre for Peace Studies, who was consulted by the embassy for their research, was very surprised on the outcome and their citation. The Centre for Peace Studies told the Swiss newspaper “Wochenzeitung” that they were only meeting with an intern of the embassy, and that they shared the information that pushbacks are not just happening in the border region of Croatia but also within the country.[97] Taking into account the various reports[98] and evidence of pushbacks and the use of violence against asylum seekers by the Croatian authorities, the association “Droit de rester” started a petition against Dublin transfers to Croatia.[99] The Swiss Refugee Council also calls for a stop of Dublin transfers to Croatia.[100]

17 persons were transferred to Croatia under Dublin in 2022, compared to 15 transfers in 2021. In 2022, nobody was transferred to Croatia under the bilateral readmission agreement, compared to 1 person in 2021.[101]

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 have not applied for asylum in Switzerland before, they have to report to the federal asylum centre which the police points them to. 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.[102]

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

[1] Article 26b AsylA.

[2] 16 outgoing requests were not categorised.

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

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

[5] See for example: Federal Administrative Court, Decision ATAF 2017/VI/1, 10 February 2017.

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

[7] Federal Administrative Court, Decision ATAF 2017 VI/5, 11 May 2017.

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

[9] Federal Administrative Court, Decision E-7896/2015, 23 June 2016.

[10] See for example: Federal Administrative Court, Decision D-3566/2018, 28 June 2018: 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.

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

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

[13] 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.

[14] Jurisprudence and examples as well as historical explanations are provided in smaller size to facilitate the reading.

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

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

[17] Data provided by SEM, 1 May 2023.  

[18] 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. 

[19] Data provided by SEM, 1 May 2023.

[20] Article 102a-bis AsylA.

[21] Article 99 AsylA.

[22] Article 21(2) AsylA.

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

[24] Article 36(1) AsylA.

[25] Article 29(2) Constitution.

[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 May 2023.

[31] ECtHR, Tarakhel v. Switzerland, Application no. 29217/12, 4 November 2014, available at: http://bit.ly/3JtwkJd. 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] Information provided by the SEM, 9 September 2015.

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

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

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

[36] Federal Administrative Court, Stricter criteria for Dublin transfers to Italy, press release, 17 January 2020, available at: https://bit.ly/419EFYX.

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

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

[40] 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).

[41] Federal Administrative Court, Reference Decision E-962/2019, 17 December 2019, para 7.4.3.

[42] Federal Administrative Court, Decisions D-4067/2019, 14 January 2020; D-1869/2019, 22 January 2020; D-552/2020, 5 February 2020; E-6810/2016, 11 March 2020; F-2751/2019, 17 March 2020; D-5952/2020, 4 December 2020. Case concerning a pregnant woman who was considered vulnerable: Federal Administrative Court, Decision F-2393/2020, 13 July 2020. However, pregnant women do not automatically fall under vulnerable applicants according to the Court, see Decisions Decisions E-406/2015, 2 April 2015; D-4978/2016, 6 September 2016 and E-1026/2020, 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, 2 April 2015. Case concerning a victim of trafficking: Federal Administrative Court, Decision E-543/2020, 16 March 2020.

[43] Federal Administrative Court, Decision D-4235/2021, 19 April 2022.

[44] Further information to be found on the website of the Swiss Refugee Council: https://bit.ly/3GULaH5.

[45] 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 in English at: https://bit.ly/3JkNYyK; 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 in English at: https://bit.ly/3Y1pkqJ.

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

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

[48] 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.

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

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

[51] Information provided by the SEM, 1  May 2023.

[52] SEM statistics 2022 (7-50), available at: https://bit.ly/3Vqxt8b. The numbers have to be read taking into account, that they are not in direct relation as transfers can take place months after the acceptance of the take charge or take back request.

[53] Information provided by the SEM, 1 May 2023.

[54] Article 29 Dublin III Regulation.

[55] Information provided by the SEM, 7 April 2022.

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

[57] Article 107a AsylA.

[58] ECtHR, M.G. and E.T. v. Switzerland, Application No 26456/14, 17 November 2016, available at: http://bit.ly/404QH53.

[59] The Canton of Neuchatel appealed against this provision, arguing that the cantons should be given room for manoeuvre and not be required to carry out the transfers ordered by the SEM. Neuchâtel claimed before the Federal Administrative Court that the SEM violated the principle of the separation of powers, its right to be heard, and also that it made an inaccurate and incomplete finding of the relevant facts. The appeal was dismissed: Federal Administrative Court, Decision F-1724/2019, 27 June 2022 and F-1752/2019, 29 June 2022. See also the summaries of euaa in English at: https://bit.ly/3WE2KnO and https://bit.ly/3QcqhtD.

[60] Article 26(3) AsylA.

[61] Article 19(2) AO1.

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

[63] Article 36 AsylA.

[64] Article 108(3) AsylA.

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

[66] Article 107a AsylA.

[67] Practice-based information by the Swiss Refugee Council.

[68] Article 14 APA.

[69] Practice-based observation by the Swiss Refugee Council.

[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 F-1850/2020, 6 May 2020, para 4.2.

[75] Federal Administrative Court, Decision E-3427/2021, E-3431/2021, 28 March 2022.

[76] SEM, asylum statistics (7-50 and 7-55), available at: https://bit.ly/3Vqxt8b.

[77] Data provided by the SEM, 1 May 2023.

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

[79] SEM, asylum statistics, (7-50 and 7-55), available at: https://bit.ly/418U0Yk..

[80] 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/3WIXmyQ.

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

[82] Federal Administrative Court, Decision D-4235/2021, 19 April 2022.

[83] NZZ, Flüchtlingsaufnahme gestoppt: Was steckt hinter Italiens Entscheidung?, 8 April 2023, available at: https://bit.ly/3nugYey.

[84] Swiss Refugee Council, Situation of asylum seekers and beneficiaries of protection with mental health problems in Italy, February 2022, available in English at: https://bit.ly/3ilkIMG

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

[86] SEM, asylum statistics, (7-50 and 7-55), available at: https://bit.ly/418U0Yk.

[87] For further details and case law, see previous updates of the AIDA Switzerland Country Report, available at: http://bit.ly/406fqpx.

[88] 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.

[89] Federal Administrative Court, Decision E-305/2017, 5 September 2017. For further details, see previous updates of the AIDA Switzerland Country Report, available at: http://bit.ly/406fqpx

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

[91] Federal Administrative Court, Decision F-2707/2022, 12 October 2022.

[92] Swiss Refugee Council, Violences policières en Bulgarie et en Croatie :  conséquences pour les transferts Dublin, 13 September 2022, available in French (and German and Italian) at: https://bit.ly/3EJZcsu.

[93] SEM, asylum statistics 2022, 2021 (7-50 and 7-55), available at: https://bit.ly/418U0Yk.

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

[95] SEM, asylum statistics (7-50 and 7-55), available at: https://bit.ly/418U0Yk.

[96] Federal Administrative Court, Decision E-1488/2020, 22 March 2023, available in German at: https://bit.ly/40Z7d5V; press release of the Federal Administrative Court in English (and German, French, Italian) available at: https://bit.ly/44qowQf; press release of the Swiss Refugee Council available in French (and German) at: https://bit.ly/40UVB3S.

[97] WOZ, Eine Kette der Verachtung, 22 Dezember 2022, available in German at: https://bit.ly/3l8L7yR.

[98] See for example Swiss Refugee Council, Violences policières en Bulgarie et en Croatie : conséquences pour les transferts Dublin, 13 September 2022, available in French (and German and Italian) at: https://bit.ly/3EJZcsu; the report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 14 August 2020, 3 December 2021, available at: https://bit.ly/3ICJEbS; the reports of the Border Violence Monitoring Networks (see http://bit.ly/3ECwSJi) and of the Centre for Peace Studies (see http://bit.ly/3xWHT4w). Further, the reports in the media, for example The Guardian, Croatian police accused of ‘sickening’ assaults on migrants on Balkans trail, 21 October 2021, available at: http://bit.ly/3ZmivAP; Rundschau, Video-Beweis: Kroatische Polizisten prügeln Migranten aus der EU, 6. October 2021, available in German at: http://bit.ly/3KGRX9f; The Guardian, Croatian border police accused of sexually assaulting Afghan migrant, 7 April 2021, available at: http://bit.ly/3Y05Hil; Der Spiegel, Sie haben wie blind auf mich eingeschlagen, 18 November 2020, available in German at: http://bit.ly/3IrxnHi; Heute, So brutal soll Kroatiens Polizei Migranten zurichten, 25 October 2020, available in German at: http://bit.ly/41speuX; Deutschlandfunk, Polizeigewalt auf der Balkanroute «Sie brechen Arme, Beine, Köpfe», 31 July 2019, available in German at: http://bit.ly/3xS1iDL.

[99] Act.Caompax, Stopp Dublin Kroatien, available in German at: https://bit.ly/3YqvGkb.  

[100] Swiss Refugee Council, Etats Dublin, available in French and German at: https://bit.ly/3ln3D6q. .

[101] SEM, asylum statistics (7-50 and 7-55), available at: https://bit.ly/418U0Yk.

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