Dublin

Switzerland

Country Report: Dublin Last updated: 30/11/20

Author

Swiss Refugee Council Visit Website

General

Dublin statistics: 2019

Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

4,848

1,724

Total

5,230

1,164

Italy

1,432

610

France

1.929

175

Germany

1,082

464

Germany

1.332

393

France

647

231

Belgium

492

84

Source: SEM, Asylum Statistics 2019.

 

The Dublin III Regulation is applied directly since 1 January 2014 according to a decision of the Federal Council of 18 December 2013.

Application of the Dublin criteria

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

Outgoing Dublin requests by criterion: 2017-2019

 

Dublin III Regulation criterion

2017

2018

2019

Family provisions: Articles 8-11

76

43

28

Documentation and entry: Articles 12-15

2,870

1,823

1,130

Dependency and humanitarian clause: Articles 16 and 17(2)

50

55

16

“Take back”: Article 18(1)(b)

4,202

3,703

2,781

“Take back”: Article 18(1)(c)

53

30

32

“Take back”: Article 18(1)(d)

1,116

1,155

861

“Take back”: Article 20(5)

3

1

0

Total outgoing requests

8,370

6,810

4,848

Source: SEM, Information provided on 12 February 2020.

 

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]

Best interests of the child: According to a doctor's report and information from the reception centre’s management, a female applicant was not capable of providing adequate care such as nourishment for her children. The applicant’s family (her father and her two siblings, all resident in Switzerland) had taken care of the applicant and especially her children since their arrival in Switzerland. The management of the reception centre stated that the loss of the family support could endanger the welfare of the applicant and her children. Nevertheless, the Federal Administrative Court confirmed the decision of the SEM to transfer the woman and her children to Italy.[4]

A family with three children, whose asylum application was rejected in France and a request of reconsideration was pending before a French court, had already been returned to France by Switzerland in January 2017. They lodged a new application in Switzerland in August 2017. Both children and parents were in a worrying medical condition. According to doctors, the Dublin transfer to France of January 2017 had caused severe psychological damage to the children. Another return would lead to a massive violation of the well-being of the children with damaging consequences. In the case of the two sons, emergency treatment had been initiated which could only lead to success if a long-term, fear-free, stable and child-friendly environment was ensured. Otherwise, a further deterioration of the condition with threatening suicidal tendencies was to be expected. The Federal Administrative Court referred to the Tarakhel[5] judgment of the European Court of Human Rights and instructed the SEM to declare itself responsible for the material examination of the asylum application of the complainants under the national procedure.[6]

Siblings: Five adult siblings left Syria together and entered Switzerland via Greece and Croatia. Switzerland considered itself responsible for three siblings, and initiated a Dublin procedure for one man and one woman, despite their identical starting position. The Federal Administrative Court considers equality in terms of law in the sense of Article 8 of the Federal Constitution as violated.[7]

 

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.[8] 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 (see section on Dublin: Appeal).

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.[9]

The sovereignty clause is used only in exceptional cases and is usually based on Article 29a(3) AO1. According to Swiss case-law,[10] the interpretation of humanitarian reasons should be similar to the interpretation of the humanitarian clause of the Dublin Regulation.[11] 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.[12] 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).

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.[13]

Several complaints regarding victims of human trafficking were decided by the Federal Administrative Court. 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 Courtstated 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.[14]  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.[15]

In 2019, the SEM applied the sovereignty clause in 859 cases, compared to 875 cases in 2018,[16] and 845 cases in 2017.

These numbers show that, like the family criteria, the humanitarian clause and the sovereignty clause are only rarely applied by Switzerland.[17] 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.[18]

 

Procedure

 

According to Swiss law, the SEM has to transmit the fingerprints of applicants to the Central Unit of the Eurodac System within the framework of the Application of the Dublin Association Agreements.[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 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.[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 Refugee Convention of 28 July 1951. So far, such cases have not been reported in practice.

If another Dublin State is presumed responsible for the examination of the asylum application, the applicant concerned 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. 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.”[26] 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.”[27]

In principle, the applicant is entitled to access to the files relevant for the decision-making.[28] Access can only be refused if this would be contrary to essential public interest, essential private interests or interests of non-completed official investigations.[29] 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.[30] 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 can notify the decision directly to applicants even if they are represented by a legal representative. The latter must be informed immediately about the notification.[31]

Individualised guarantees

In a first national leading case judgment regarding the Tarakhel judgment,[32] 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. If the guarantees are only given before the actual transfer (as had been the practice up to then), this is too late as at that stage there is no longer a legal remedy.[33] After this judgment, there have been several cases in which the Court sent the matter back to the determining authority because of insufficient guarantees.[34] However, in one case the Court stated that the Italian authorities had provided a sufficient guarantee by providing a list of the Protection System for Asylum Seekers and Refugees (SPRAR) projects in Italy in which a number of places have 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.[35]

In cases of pregnant women, the Court states that no Tarakhel guarantees must be obtained.[36] It also pointed out that the unborn child cannot rely on the Convention on the Rights of the Child.[37] Tarakhel is only applied in the case of families in the Dublin procedure, not for other categories of persons.[38] There have been only two exceptions: in two exceptional cases the Court asked for individual guarantees regarding reception conditions and access to medical treatment regarding mentally ill persons (not families) and regarding Hungary and Slovenia (not Italy).[39] Therefore in some special cases it is possible that Switzerland requests a Member State to provide detailed information about a possible medical treatment or an ongoing treatment, especially for persons who are suffering from tuberculosis. However, these are not deemed as guarantees within the meaning of the Tarakhel judgment.[40] Furthermore, in Dublin cases regarding Greece – as of 2019 only applying to persons with a Greek visa – guarantees according to the Recommendation of the European Commission of 8 December 2016 are collected by the SEM and this is considered sufficient by the Court.[41]

Whereas 36 families and single parents with children were transferred to Italy under the Dublin Regulation in 2017,[42] the number was 35 families and single-parent families in 2018 and only three families in 2019.[43] 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.[44] 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 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),[45] 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.[46] 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 demonstrated that reception conditions in Italy deteriorated further in 2018. In the third quarter of 2018, two cases of families transferred under the Dublin Regulation from other Member States were already placed in the first reception centre of Mineo, which has a reputation for its worrying living conditions. Following the latest amendments in asylum legislation in Italy, asylum seekers are also legally no longer entitled to live in SPRAR centres.[47] On 8 January 2019, another circular letter was sent from the Italian Dublin Unit to all Member States – replacing the circulars issued since 8 June 2015 – stating that families will 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 the guarantees provided by the Italian authorities in January 2019 were not specific enough, as families requiring transfer from Switzerland to Italy no longer have access to the second-line reception centres under the new legislation.[48] The Italian authorities are required to submit even more specific guarantees concerning reception conditions in each individual case. The Swiss asylum authorities are now obliged to obtain individual assurances guaranteeing the requisite medical care and accommodation for seriously ill asylum seekers who will be reliant on seamless medical care from the moment they arrive in Italy.[49]

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 2020, 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.[50] 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.

Transfers

According to the SEM, in 2019 it took on average 10.54 days to take a Dublin decision after the receipt of a positive answer from the requested Member State.[51] According to the same source, on average another 335.13 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. Applicants within a Dublin procedure may be detained on specific grounds. The Federal Administrative Court as well as the Federal 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 2019, a total of 1,124 persons were placed in detention for the purpose of the Dublin III Regulation.[52]

As the Dublin III Regulation is directly applied in Switzerland, voluntary transfers should in principle be possible.[53] There were 33 voluntary transfers to Dublin States in 2016, and a total of 17 in 2017 in Zurich.[54] For both test centres, this figure reached 65 in 2018.[55] In 2019, no voluntary Dublin returns took place. 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.[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. On the contrary, in Dublin cases this is precisely not the case, as there is no automatic suspensive effect.

The ratio of outgoing Dublin transfers reached 36% in 2019 (1,724 transfers and 4,848 requests), compared to 25.8% in 2018.[59] Only a bit more than one third of requests made by Switzerland result in actual transfers.

 

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, the journey to Switzerland and summarily on the reasons for seeking asylum.[60]  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.[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 his/her legal representative.

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,[62] 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: 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.[63]

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.[64] 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.[65]

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.[66] In practice, it hardly ever uses 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 (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. 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 with subsidiary protection. 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.[67]

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.[68]

 

Legal assistance

 

Free legal assistance is ensured at first instance since the entry into force of the new asylum procedure in March 2019.[70] Therefore, in the Dublin procedure just as in the regular procedure, state-funded 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 but the practice is not yet clearly defined. For further information, see the general chapter on Legal assistancein the regular procedure.

 

The relatively short time limit of five working days for lodging an appeal against a Dublin transfer decision constitutes an obstacle to appealing in cases where the free 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 problematic with regard to the remote locations of federal centres as they are far away from independent legal advisory offices that are usually situated in urban areas.

 

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. 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. This has also been the case with vulnerable persons.[71] 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.[72] 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 or not the transfer decision should be upheld.[73] According to SEM statistics, 3 persons were transferred to Greece under Dublin and 21 persons were transferred under the readmission agreement in 2019. In 2018, 26 persons were transferred to Greece under the readmission agreement.[74]

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.[75] 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. In March 2017, 199 appeals regarding a Dublin transfer to Hungary were pending at the Federal Administrative Court, and it is very likely that all of them were referred back to the SEM for further examination. Many of the cases concern persons who are waiting for about two years only for the examination of responsibility under Dublin, which is not in line with the objective of rapid determination of the Member State responsible under the Dublin III Regulation.

According to SEM statistics, there was no transfer to Hungary under Dublin in 2019, similarly to 2018.[76]

Italy:[77] 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. Also following the change of government in Italy and the introduction of the latest asylum reform,[78] the Federal Administrative Court first did not see a ground for a change of its constant jurisprudence,[79] but there were an increasing number of judgements in the second half of 2019 which sent the case back to the SEM in order to clarify the situation. The cases mainly concerned families or persons with health issues. The Federal Administrative Court saw at least doubts in adequate reception conditions and access to health care in Italy. Regarding families and seriously ill persons, the Federal Administrative Court ruled in a reference judgment that the guarantees provided by the Italian authorities in January 2019 were not specific enough, as families requiring transfer from Switzerland to Italy no longer have access to the second-line reception centres under the new legislation. [80] The Italian authorities are required to furnish even more specific guarantees concerning reception conditions in each individual case. The Swiss asylum authorities are now obliged to obtain individual assurances guaranteeing the requisite medical care and accommodation for seriously ill asylum seekers who will be reliant on seamless medical care from the moment they arrive in Italy.

The Swiss Refugee Council will continue to document transfers to Italy in 2020 within the framework of the Dublin Returnee Monitoring Project (DRMP).[81]

Bulgaria: Transfers are generally carried out, even in the case of families and vulnerable persons.[82] In a decision from September 2017,[83] 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.”[84]

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.[85] 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).[86] In 2019, the outcome of the judgements regarding Bulgaria were mixed, but only one transfer was carried out.

On 11 February 2020 the Court has made a reference judgementon the question of systemic deficiencies in Bulgaria.[87]  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 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.

Malta: According to its own manual,[88] the SEM does not transfer vulnerable asylum seekers to Malta if they are facing detention. Two persons have been transferred to Malta under Dublin in 2019.[89]

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.[90] 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. 14 persons have been transferred to Croatia under Dublin in 2019.[91]

 

The situation of Dublin returnees

 

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 BVGE 2017/VI/1, 10 February 2017.

[4]  Federal Administrative Court, Decision F-905/2017, 12 July 2017.

[5] European Court of Human Rights, Tarakhel vs. Switzerland, No. 29217/12.

[6] Federal Administrative Court, Decision D-5698/2017, 6 March 2018.

[7] Federal Administrative Court, Decision E-2246/2016, 4 October 2017.

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

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

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

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

[12]  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.

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

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

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

[16] According to information provided by the SEM on 14 February 2019, out of these cases, 629 cases concerned Greece, 101 Hungary, 80 Italy and 65 other Dublin States.

[17] 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.  

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

[19] Average duration in 2018: Information provided by the SEM, 21 January 2019.

[20]Article 102a-bis AsylA.

[21] Article 99 AsylA.

[22]Article 21(2) AsylA.

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

[24]Article 36(1) AsylA.

[25]Article 29(2) Constitution.

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

[27] Ibid, para 87.

[28] Article 26 APA.

[29] Article 27 APA.

[30]  Article 17(5) AsylA.

[31]  Article 12a(2) AsylA.

[32]  The Court 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.

[33] Federal Administrative Court, Decision BVGE 2015/4, E-6629/2014, 12 March 2015.

[34] For example, Federal Administrative Court, Decision E-936/2015, 21 April 2015 regarding a Nigerian woman who claimed to have been forced into prostitution in Italy, and who had asked for asylum in Switzerland with her two children; Decision E-3564/2014, 16 March 2015 regarding a single mother with her child; or Decision E-3078/2019, 12 July 2019 against a transfer to Croatia, summary is available at: https://bit.ly/3aGk3ga.

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

[36] Federal Administrative Court, Decisions E-406/2015, 2 April 2015 and D-4978/2016, 6 September 2016.

[37] Federal Administrative Court, Decision E-406/2015, 2 April 2015.

[38] 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.

[39]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.

[40] Information provided by the SEM, 3 August 2017.

[41] Federal Administrative Court, Decision F-3440/2018, 12 September 2018.

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

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

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

[45]Further information to be found on the website of the Swiss Refugee Council: https://bit.ly/323tHWy.

[46]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.

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

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

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

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

[51] Information provided by the SEM, 21 January 2019.

[52] Information provided by the SEM, 21 January 2019.

[53]Article 29 Dublin III Regulation.

[54]Information provided by the SEM, 14 February 2019.

[55] Information provided by the SEM, 22 February 2019.

[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, Decision of 17 November 2016.

[59] SEM, Asylum Statistics 2018; Asylum Statistics 2019.

[60] Article 26(3) AsylA.

[61] Article 19(2) AO1.

[62] Article 36 AsylA.

[63] Article 108(3) AsylA.

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

[65] Article 107a AsylA.

[66] Article 14 APA.

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

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

[69] With the new Swiss asylum procedure starting 1 March 2019, the free legal assistance will be provided at first instance for every asylum seeker.

[70] Article 102f AsylA.

[71] Despite worrying documentations of the situation after the return of persons with status in Greece, e.g. Refugee Support Aegean and Pro Asyl, Case study: Returned recognized refugees face a dead-end in Greece, 4 January 2019, available at: https://bit.ly/2QrdIKw.

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

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

[74]SEM, Asylum Statistics 2018; Asylum Statistics 2019.

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

[76] SEM, Asylum Statistics 2018; Asylum Statistics 2019.

[77] Regarding reception conditions in Italy for Dublin Returnees and persons with international protection status please see: Swiss Refugee Council OSAR, 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.

[78] Regarding the effect on the asylum reform on the guarantees under the Tarakhel judgement, see chapter Procedures.

[79] Federal Administrative Court, Decision E-6313/2018, 29 November 2018.

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

[81] Further information to be found on the website of the Swiss Refugee Council, available at: https://bit.ly/323tHWy.

[82] 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.

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

[84] Ibid, para E.2.

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

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

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

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

[89] SEM, Asylum Statistics 2019.

[90] Federal Administrative Court, Decision E-3078/2019, 12 July 2019.

[91] SEM, Asylum Statistics 2019.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection