Regular procedure

Switzerland

Country Report: Regular procedure Last updated: 14/05/21

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Preparatory phase: The preparatory phase (“phase préparatoire”) starts with the lodging of the application and lasts a maximum of 10 days in the case of a Dublin procedure and a maximum of 21 days for other procedures. The purpose of the preparatory phase is to carry out the preliminary clarifications necessary to complete the procedure, in particular to determine the State competent to examine the asylum application under the Dublin III Regulation, conduct the age assessment – if the minority is doubted – collect and record the personal data of the asylum seekers, examine the evidences and establish the medical situation.[1] During the preparatory phase, a first interview is held mainly to determine whether Switzerland is competent to examine the merits of the asylum application (see Personal interview).[2]

Cancellation and inadmissibility decision: On this basis, the SEM decides whether an application should be examined and whether it should be examined on the merits. If the application cannot be considered as an asylum claim according to the Asylum Act or if the application is not sufficiently justifiable and the asylum seeker withdraws his or her application, the application is cancelled without a formal decision.[3] Similarly, the application is cancelled without a formal decision if asylum applicants fail to cooperate without valid reason or if they fail to make themselves available to the authorities for more than 20 days or more than 5 days if the asylum seeker is accommodated in a federal centre.  The persons concerned are further not allowed to lodge a new application within 3 years, unless this restriction would amount to a violation of the Refugee Convention.[4] However, according to information provided by the organisations providing legal assistance in the federal centres, applicants who return to the centres after their asylum application has been cancelled without a formal decision are, in principle, reintegrated into the ongoing procedure if they reappear within a few months.

In certain cases, the SEM will take an inadmissibility decision (NEM/NEE), which means that it decides to dismiss the application without examining the substance of the case. Such a decision is for example taken if the asylum application is made exclusively for economic and medical reasons. In practice, the most frequent reason for such a decision is the possibility of the applicant to return to a so-called safe third country or if according to the Dublin Regulation another state is responsible for conducting the asylum and removal procedures.[5]

Dublin procedure: If the preliminary investigations 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.[6] 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 (see section Dublin: General).[7]

Accelerated procedure: Unless a Dublin procedure is initiated, the accelerated procedure itself starts as soon as the preparatory phase is completed.[8] It lasts a maximum of eight working days[9] and includes mainly the following stages:[10]

  • Preparation of a second interview regarding the grounds of asylum;
  • Conduct of the second interview and/or granting the right to be heard;
  • Assessment of the complexity of the case and decision to continue the examination of the asylum application under the accelerated procedure or proceed to the extended procedure;
  • Preparation of the draft decision;
  • If negative, legal representative’s opinion on the negative draft decision within 24 hours.
  • Notification of the decision

After the interview on the grounds for asylum, the SEM carries out a substantive examination of the application. It starts by examining whether the applicant can prove or credibly demonstrate that he or she fits the legal criteria of a refugee. As laid down in law, a person able to demonstrate that he or she meets these criteria is granted asylum in Switzerland.[11] If this is the case, a positive asylum decision is issued.

If the SEM considers however that an applicant is not eligible for refugee status or that there are reasons for his or her exclusion from asylum,[12] it will issue a negative asylum decision. In this case, the SEM has to examine whether the removal of the applicant is lawful, reasonable and possible.[13] If the removal is either unlawful, unreasonable or impossible, the applicant will be temporarily admitted (F permit) in Switzerland. A temporary admission constitutes a substitute measure for a removal that cannot be executed. It can be granted either to persons with refugee status who are excluded from asylum or to foreigners (without refugee status). The scope of the temporary admission as foreseen in national law exceeds the scope of the subsidiary protection foreseen by the recast Qualification Directive, as it covers both persons whose removal would constitute a breach of international law, as well as persons who cannot be removed for humanitarian reasons (for example medical reasons).

The actual duration of the accelerated procedure exceeds the one foreseen in the law. The average time between asylum application and decisions taken under the accelerated procedure in 2020 was 64 days,[14] while in a normal case this should not be more than 29 days.

According to statistics provided by the SEM in 2020, out of 2,835 decisions on the merits issued within the accelerated procedure, 1,279 (45%) resulted in the granting of asylum and 903 (32%) of a temporary admission, while a total of 653 (23%) rejections were issued with a removal order. This suggests that accelerated procedures do not necessarily result in the issuance of negative decisions, as was initially feared by critical observers before the asylum reform entered in force.

Extended procedure: If it appears from the interview on the grounds for asylum that a decision cannot be taken under an accelerated procedure, the application is channelled into an extended procedure and the asylum seeker is allocated to a canton. The switch to an extended procedure occurs in particular when a procedure cannot be concluded within eight working days because additional investigative measures prove necessary[15] or if the maximum length of stay of 140 days in a federal centre is reached.[16] In addition to a possible additional interview, other investigative measures with regard to the identity and origin of the person, the alleged medical problems, the documents submitted or the credibility of the allegations may be taken.

The decision to proceed with the extended procedure is an “incidental decision” (“Zwischenverfügung” in German or “décision incidente” in French) and cannot be appealed before the final decision is issued so as to avoid lengthy procedures.

In a landmark decision of June 2020 the Federal Administrative Court ruled that, in light of the different applicable appeal deadlines, a wrong assessment as to whether a case is to be considered as complex or not – and based on which it will therefore be channelled into the extended procedure or not – may constitute a violation of the right to an effective remedy.[17] The Court clarified that a case should be considered as complex and requires to be channelled into an extended procedure if a complementary interview on the grounds for asylum is necessary,[18] if the applicant has submitted a large amount of evidence or if further clarifications need to be mandated in the country of origin.[19] The extended procedure also needs to be ordered when the deadlines cannot be met, for example when the medical situation of the applicant could not be sufficiently assessed, and especially if the asylum seeker is still residing in a federal asylum centre after 140 days.[20]

During the preparation of the reform, the SEM had estimated that approximately 40% of the procedures would be conducted under the extended procedure. This estimate later changed to 28%. At the beginning of the reform, however, very few cases were attributed to the extended procedure, corresponding to approximately 19% of all applications.[21] Data about how many cases were attributes to the extended procedure in 2020 are not available. In 2020, the SEM took 22% of the decisions under the new procedure within an extended procedure, 49% within an accelerated procedure and 29% within a Dublin procedure.[22

According to statistics provided by the SEM, out of 1,498 decisions on the merits taken at first instance within the extended procedure, 535 (36%) resulted in the granting of asylum and 457 (30%) in a temporary admission, while 506 (34%) were rejected with their removal being ordered.[23]

Length of procedure: The Asylum Act sets time limits for making a decision on the asylum application at first instance. In the case of inadmissibility decisions, the decision should be made within 5 working days of the submission of the application, or within 3 working days of the moment when the concerned Dublin state has accepted the transfer request. In an accelerated procedure, the decision should be notified within 8 days following the end of the preparatory phase whereas this period is extended to 2 months under the extended procedure.[24] However, the procedural deadlines set in Swiss law are not binding but rather give a general temporal scope. Within the airport procedure, decisions must be issued within 20 days of the submission of the application. Otherwise, the SEM allocates the applicant to a federal centre or a canton.[25]

Under the former asylum system, the length of the asylum procedure at first instance varied significantly from what was foreseen by law. As a way of example, in 2018 the average duration was 465.7 days[26]. This average has significantly decreased with the entry into force of the asylum reform in 2019.

Following a first assessment of the new procedure covering the period from March to December 2019, SEM indicated that Dublin procedures last on average 35 days, while national procedures last on average 50 days in the accelerated procedure and 100 days in the extended procedure, before a decision is issued.[27] In contrast to the very positive initial assessment made by the SEM, several organisations, including OSAR, highlighted that such acceleration was partly accompanied by a reduction of the decision quality, stressing the need to ensure that the speeding up of procedures does not occur to the detriment of the quality of the examination of asylum applications and the decision-making process.[28] In fact, the number of decisions that were annulled by the Federal Administrative Court was very high during the first 18 months of application of the new procedure, which showed significant problems of instruction by the SEM (see section on Appeal).

In 2020, the average duration of the procedures (excluding those conducted under the old procedure) from the application to the first instance decision was 54 days for Dublin procedures, 64 for accelerated procedures and 221 for extended procedures. These lengths are significantly higher than those foreseen in the law (namely a maximum of 29 days for accelerated procedures and approx. 80 days in the extended procedure). The average duration of procedures that were concluded in 2020 under the old procedure was very high, at 616 days.[29]

3,852 applications were pending at first instance on 31 December 2020, representing a very significant decrease since 2019, when 8,377 applications were still pending. This has to do with the completion of a high number of old procedures, as 6,340 of them were processed in 2020 and 447 pending by the end of the year.[30] The decrease of the backlog is further due to the decrease of the overall number of applicants in 2020 and the impact of COVID-19, as a result of which the SEM was able to focus on pending cases.

Prioritised examination and fast-track processing

Following the entry into force of the new asylum procedure in 2019, the previous accelerated procedures (i.e. fast-track and 48-hour procedures) are not used anymore.

Under the Asylum Act, asylum applications lodged by unaccompanied minors are examined as a matter of priority.[31] In addition, SEM defines an asylum processing strategy in which it determines an order of priority.[32] In March 2019, SEM communicated its new strategy for processing asylum applications that takes several elements into account, namely (i) the situation in the country of origin, (ii) the credibility of the asylum request and (iii) the asylum seeker’s personal behaviour.[33] Applications that can be processed under the Dublin procedure or under an accelerated procedure are given priority treatment,[34] as well as those lodged by nationals originating from countries with a low rate of recognition. The list of countries considered as having a low chance of success is available online and was last updated in October 2019.[35]

Personal interview

The SEM carries out the whole first instance procedure. It is therefore also responsible for conducting the interviews with the applicants during the asylum procedure in both accelerated and extended procedures.

During the preparatory phase, the applicants undergo a short preliminary interview during which they are accompanied by their legal representative. This interview is mainly held to determine whether Switzerland is competent to examine the merits of the asylum application and is called Dublin interview (see section on Dublin: Personal interview). The health emergency due to the COVID pandemic has slightly modified the conditions of interview (see below). In 2020, the SEM conducted 736 preliminary interviews.[36] The average duration of such Dublin interviews was 1 hour.[37]

In case the SEM intends to take an inadmissibility decision (see section on Admissibility Procedure), the applicant is granted the right to be heard, be it orally during the interview or later in writing. The same applies if the person deceives the authorities regarding his or her identity and this deception is confirmed by the results of the identification procedure or other evidence, if the person bases his or her application primarily on forged or falsified evidence, or if he or she seriously and culpably fails to cooperate in some other way.[38] In those cases, there is no second interview.

Unaccompanied minors do not undergo a Dublin interview but they are subject to a first interview for unaccompanied minors, during which they are accompanied by their person of trust who is as well their legal representative. The interview serves to gather information about his person, family and journey in order to prepare the next steps of the procedure, which sometimes include an age assessment (see Age assessment of unaccompanied children). In 2020, such interviews lasted on average 3,5 hours.[39]

Interview on the grounds for asylum: In all the other cases, the accelerated procedure begins and the applicant undergoes a second interview (so-called interview on the grounds for asylum).[40] On this occasion, the applicant has the possibility to describe his or her reasons for fleeing and, if available, to submit evidence. In addition to the person in charge of conducting the interview and the person who draws up the minutes, asylum seekers are accompanied by their legal representative and, if necessary, a translator. The applicant may also be accompanied by a person of his or her choice and an interpreter.[41] In 2020, the SEM conducted 3210 interviews on the grounds for asylum within the new accelerated procedure (and 486 additional interviews, see below). Such interview lasted on average 5 hours. The SEM also conducted 1,527 interviews on the grounds for asylum under the old procedure (of which 330 were complementary interviews).[42]

During the first wave of the COVID-19 pandemic there was no suspension of the asylum procedure. The SEM only suspended the interviews during two weeks at the end of March until the rooms were equipped with plexiglass and masks were at disposal. The Ordinance on Measures Taken in the Field of Asylum due to Coronavirus (Ordinance COVID-19 Asylum), entered in force on 2 April 2020 and is valid until at least 30 June 2021 (most probably until 31 December 2021)[43], foresees the limitation of the number of persons present in the same room during the interview.[44] The SEM officer and the asylum seeker are in the same room, while the interpreter, the minute keeper and the legal advisor can be situated in another room and participate in the interview through appropriate technical means. In practice, the interview setting differs from one region to another and was mostly adapted to single cases. In some cases, the interpreter was in the same room as the asylum seeker and SEM officer, while in other cases, the legal advisor was in the same room while the interpreter was connected via video or audio means. In most cases, only audio transmission was used and not video, which the SEM motivated with data protection issues. As of January 2021, interviews mainly take place in large rooms allowing for all participants to attend them in the same room. If one of the participants belongs to a category of higher risk regarding COVID-19 or if there is no such large room available, the interview takes place in two separate rooms. Since January 2021 there is a mask obligation for all participants in the interviews.

The Ordinance also foresees the possibility, if health reasons related to the coronavirus require it, to exceptionally hold the interview in such a way that the asylum seeker and the officer are in separate rooms and that the interview is conducted using appropriate technical means, however this option seems to have not been used. As of January 2021, the SEM allows to postpone an interview until after vaccination if the situation is deemed too risky for the applicant. Persons at higher risk can also have a FFP2-mask from SEM to use during interview.

The Ordinance also states at Article 6 that in case the legal advisor cannot participate in the interview due circumstances related to the coronavirus, the interview can be conducted and is legally effective. This provision has been strongly criticised by the Swiss Refugee Council and other organisations[45] as well as in a legal note concluding that interviews carried out without the legal representative shall be considered formally invalid.[46] As a consequence, this provision has not been used in practice, except in a few cases at the beginning of the pandemic.

Regarding the content of the interview on the grounds for asylum, the following are the main topics discussed:

  • Educational background, training and career paths
  • Places of residence in the country of origin and possible stays in other countries
  • Family and social environment
  • Identity documents
  • Itinerary before arrival in Switzerland
  • Grounds for claiming asylum
  • Pieces of evidence
  • Health conditions[47]

Under the accelerated procedure, SEM may subsequently decide to carry out a complementary asylum interview and assign the applicant to the extended procedure if additional investigative measures are necessary. In 2020, the SEM conducted 486 such complementary asylum interviews[48] which also lasted on average approximately 5 hours.[49] This decision is only up to the SEM, however the legal representative can suggest its suitability, for example if not all the relevant topics have been discussed or if he/she has more questions to add. Interviews conducted by SEM under the extended procedure satisfy the same conditions and requirements as those carried out under the accelerated procedure. In principle, the applicant is invited to an interview, at which he/she is accompanied by his/her legal representative. The interview takes place in the federal asylum centre where the first stages of the person’s asylum procedure were carried out.

According to article 17(2) AsylA in relation to article 6 AO1, if there are concrete indications of gender-related persecution or if the situation in the State of origin allows the inference that such persecution exists, the asylum seeker shall be heard by a person of the same sex. This rule also applies to the other participants of the interview such as the interviewer, the interpreter and the legal representative and represents a right for the asylum seeker. Non-compliance with this provision constitutes a violation of the right to be heard. The applicant is, however, free to renounce this right. In this case, a formal right to be heard must be granted.

In practice, the official in charge of the case may on his or her own initiative decide to conduct an interview with persons of the same sex as the applicant, or the legal representative may so request. However, it may also happen that this obligation is not complied with in practice, which implies the intervention of the legal representative, who should then require the cancellation of the interview and its conduct in an appropriate interview team composition. In case of male applicants victims of gender related persecution, this provision is implemented in a more open and pragmatic way, asking the asylum applicant which team composition he prefers.[50]

Interpretation

According to Swiss asylum law, the presence of an interpreter during the personal interviews is not an absolute requirement, as an interpreter should be called in “if necessary”.[51] Normally, an interpreter nevertheless participates in the interviews. According to the SEM, the interview always takes place with an interpreter, unless the knowledge of an official Swiss language by the applicant is considered sufficient.[52] However, in certain cases, it has been observed that applicants – especially Nigerian applicants – are interviewed in English. This is problematic when the interviewed person, contrary to the assumption of the SEM, does not sufficiently master that language. The SEM issued a code of conduct applicable for its interpreters, specifying their role, the expected impartial and neutral conduct and emotional detachment during translation.[53]

Even if, in general, an interpreter is present during the interviews, some problems have been identified with regard to simultaneous translation. Internal, unpublished surveys on procedural problems conducted by the representatives of charitable organisations attending interviews regarding the grounds for asylum in the old procedure (coordinated by the Swiss Refugee Council) regularly highlight difficulties relating to simultaneous translation, such as partially incorrect translations, difficulties of comprehension taking into account the cultural context and the corresponding references. In this respect, the systematic presence, in principle, of an interpreter and a legal representative during the interview should reinforce the right of asylum seekers to be able to express themselves in a language of which they have a sufficient command. If significant communication problems arise between the interpreter and the asylum seeker, the interview must be cancelled. In any case, issues related to translation should be mentioned in the minutes so as to be considered by the Court in case of appeal.

During 2020 and due to the special measures to prevent COVID-19 infections, the interpreter and the legal advisor can be placed in a separate room and connected with audio means (see above).

The representatives of charitable organisations also point out that several interpreters are not impartial, sometimes even have close ties to the regime in the country of origin, or that they lack professionalism (i.e. imprecise, no literal translation but a summary, lacking linguistic competence).[54] Problems have also been identified in relation to the difference in accent or dialect between the interpreter and the applicant, especially in cases where the applicant’s mother tongue was Tibetan, Kurdish of Syria or Dari.

While from time to time there may be a temporary shortage of interpreters for a specific language, it appears, particularly in view of the drop in asylum applications in recent years, that the quantitative needs are generally covered.

Video conferencing has only very rarely been used for the interviews. In the test procedure in Zurich of 2018, which corresponded to the new accelerated asylum procedure, the SEM tested interpretation via Skype for Business, in order to reduce costs. Due to technical problems and lack of data protection regulation, the SEM renounced, until further notice, to use video conferencing. During 2020 and due to the pandemic, interviews could take place in two different rooms, where the interpreter could in some cases be placed in a separated room and connected with audio and/or video transmission.

Transcript

Neither audio nor video recording of the personal interview is required under Swiss legislation. The recording of interviews with asylum seekers is a long-standing demand of the charitable organizations, which has so far not been implemented by the federal authorities.[55] In a letter of January 2020, sixty-six experts in asylum law requested the introduction of audio recording of asylum interviews, to which the SEM answered vaguely that it needed to examine a series of aspects before considering such a measure.[56]

However, written minutes are taken of the interview and signed by the persons participating in the interview at the end, after a translation back into the language of the applicant (carried out by the same interpreter who had already translated during the interview).[57] Before signing the minutes, the applicant and legal representative have the possibility to make further comments or corrections to the minutes.

 Appeal

Swiss law provides for an appeal mechanism in the regular asylum procedure. The sole competent authority for examining an appeal against inadmissibility and in-merit decisions of the SEM is the Federal Administrative Court (Tribunal administratif federal, TAF).[58] A further appeal to the Federal Supreme Court is not possible (except if it concerns an extradition request or detention, including in Dublin cases).[59] The Federal Administrative Court can either deliberate on the merits of a case and issue a new, final decision or cancel the decision and send the case back to the SEM for reassessment. Appeals are usually decided upon by three judges, while manifestly founded or unfounded cases are decided upon by one judge (with the approval of a second judge). Leading decisions (or coordination judgements) are taken by five judges.

An appeal to the Federal Administrative Court can be made on two different grounds: the violation of federal law, including the abuse and exceeding of discretionary powers; and incorrect and incomplete determination of the legally relevant circumstances.[60] During 2020, the Federal Administrative Court did not suspend its activities. It was only decided to extend the judicial holidays in April (which automatically extended the deadlines as well), but this provision did not concern asylum appeal procedures.

It is important to note in this respect that the Federal Administrative Court cannot fully verify asylum decisions of the SEM anymore, since the examination for appropriateness has been abolished in the Asylum Act as of 1 February 2014.[61] The Court can examine the SEM’s decisions on asylum only regarding the violation of federal law, including the abuse and exceeding as well as undercutting (but not the inappropriate use) of discretionary powers or incorrect and incomplete determination of the legally relevant circumstances.[62] Even if the Court can still verify the appropriateness of the enforcement of removal (as this part of the decision falls under the Foreign Nationals and Integration Act, as opposed to the decision on asylum, which falls under the Asylum Act and is therefore subject to the limitation of the Court’s competence), it is questionable whether the legal remedy in asylum law is effective. The limitation of the Court’s competence in asylum decisions seems problematic and unjustified in view of the rights to life, liberty and physical integrity that are at stake. Also, it can lead to incongruities between the areas of asylum and foreigners’ law.[63] In practice, the limitation of the Court’s competence has proven to be extremely problematic especially in Dublin cases when it comes to the question whether Switzerland should apply the sovereignty clause for humanitarian reasons or not (see section on Dublin: Appeal).

The appeal must meet a certain number of formal criteria (such as written form, official language, mention of the complaining party, signature and date, pieces of evidence if available). The proceedings in front of the court should be conducted in one of the 4 official languages,[64] which are German, French, Italian and Romansh. Writing an appeal can be an obstacle for an asylum seeker who does not speak any of these languages. In practice, the Court sometimes translates appeals or treats them even though they are written in English. The court can also set a new time limit to translate the appeal, but there is no legal basis for this procedure; it depends on the goodwill of the responsible judge. As a service to persons who want to write an appeal themselves, the Swiss Refugee Council offers a template for an appeal with explanations in different languages on its website.[65]

In addition, it must be clear that it is an appeal and what the intention of the appeal is. If an appeal does not meet the criteria, but the appeal has been properly filed, the Court should grant an appellant a suitable additional period to complete the appeal.[66]

The time limit for lodging an appeal against negative decisions on the merits is 7 working days if the decision was issued under the accelerated procedure and 30 days under the extended procedure. As a response to the difficulties caused by the pandemic, the deadline has been temporarily extended to 30 days also for decisions taken under the accelerated procedure.[67] No such extension is foreseen for inadmissibility decisions taken without entering on the merit (NEE/NEM), for which the appeal still needs to be filed within five working days. The Court normally has to take decisions on appeals against decisions of the SEM within 20 days in case of accelerated procedure and within 30 days under the extended one.[68] During the first 18 months since the introduction of the new accelerated asylum procedure, the 20-day deadline was met in 72% of cases (442 procedures). It exceeded by a few days in 8% of cases, by 10 to 30 days in 10% of cases, and by more than 30 days in 10% of cases.[69] This constitutes a significant acceleration in comparison with the average duration of an appeal procedure between 2015 and 2017, that was 159 days.[70]

In general, an appeal has automatic suspensive effect in Switzerland.[71] Appeals in Dublin cases are an exception: suspensive effect is not automatic but can be granted upon request (see section on Dublin: Appeal).

Different obstacles in appeals have been identified. One important obstacle is the fact that the Court may demand an advance payment (presumed costs of the appeal proceedings, usually amounting to 750 Swiss francs (around 680 Euros), under the threat of an inadmissibility decision in case of non-payment. Only for special reasons can the full or part of the advance payment be waived.[72] Appeals filed by legal representatives working for the organisations mandated by the SEM are usually not subject to such advance payment. An advance payment is mostly requested when the appeal is considered as prima facie without merit, which may be fatal to destitute applicants in cases of a wrong assessment. Such wrong assessments have been noted by the European Court of Human Rights (ECtHR).[73] In October 2017, the Federal Supreme Court instructed the Federal Administrative Court to cease demanding an advance payment for unaccompanied asylum-seeking children in appeal procedures. According to the Court, the present practice of Federal Administrative Court consisting in requiring an advance payment in such situations constitutes a measure that disproportionately restricts access to justice for unaccompanied asylum-seeking children.[74]

Another issue results from the limitation of the competence of the Federal Administrative Court (see above). Notably, in many cases, the Court only cancels the first instance decision without reforming it. In the first 18 months of application of the new procedure, the Federal Administrative Court has cancelled 95 decisions taken under the new accelerated procedure due to formal reasons and transmitted back to the SEM for further instruction and a new examination, while only 31 appeals were (partially or totally) admitted, meaning that the Court decided on the merit and ordered the SEM to provide the appellants with asylum or temporary admission.[75] These numbers show significant problems of instruction and too low quality of the decisions, as pointed out by several independent assessments.[76] A comparison with the judgements provided in the same time period for cases treated under the ancient procedure shows that a much higher proportion of judgements was reformative (473 judgements vs. 291 cases in which the decision was cancelled and the case transferred back to the SEM).

Finally, the fact that the appeal procedure is exclusively carried out in writing can represent an obstacle since the appellant has no direct contact with the judges and can only express him/herself in written form. The Court has the possibility to order a hearing if the facts are not elucidated in a sufficient manner,[77] however in practice, it does not make use of this possibility.

 

Legal assistance

The new asylum procedure of March 2019 introduced the right for asylum seekers to receive free counselling and legal representation at first instance, regardless of the applicable procedure (accelerated, extended, Dublin).[78] This accompanying measure, which aims to ensure a fair asylum procedure, was introduced in order to compensate the overall aim to speed-up the decision-making process. In order to ensure this legal protection, SEM contracted one or more service providers from recognised charitable organisations to carry out these tasks in the federal asylum centres and at the airports of Geneva and Zurich. They are paid based on the number of signed powers of attorney. These organisations were selected through a public call for tenders and all of them have solid experience in providing legal support and representation to applicants. They currently comprise 4 organisations which are present in the 6 federal asylum centres, and their mandate has been extended until 28 February 2023. The organisations are as follows:

Organisations providing legal assistance at first instance
Federal centre Name of organisation
Altstätten HEKS-Rechtsschutz
Bern Rechtsschutz für Asylsuchende (RBS Bern)
Basel HEKS-Rechtsschutz
Boudry (+ airport Geneva) Protection juridique Caritas Suisse & VSJF
Chiasso SOS-Ticino & Caritas Protezione giuridica
Zurich (+ airport Zurich) Rechtsschutz für Asylsuchende (RBS Bern)

Source: Swiss Refugee Council, addresses and contacts available at: https://bit.ly/3pYFvVt.

Although mandated by the federal migration authority SEM, independence and confidentiality in the work of legal representation must be guaranteed.[79] The quality of the legal protection is currently the object of an external evaluation mandated by SEM.

Each asylum seeker is assigned a legal representative from the start of the preparatory phase and for the rest of the asylum procedure, unless the asylum seeker expressly declines this. The legal representative assigned should inform the asylum seeker as quickly as possible about the asylum seeker’s chances in the asylum procedure. The so-called legal protection in the federal asylum centres, consisting in principle of an advice office and legal representation, mainly carries out the following tasks:[80]

  • Informing and advising asylum seekers;
  • Informing asylum seekers about their chances of success in the asylum procedure;
  • Ensuring the preparation of – and participating in – the interview
  • Representing the interests of unaccompanied minor asylum seekers as a person of trust in federal centers and at the airport;
  • Drafting an opinion on the negative draft decision in the accelerated procedure;
  • Communicating the end of the representation mandate to the asylum seeker when the representative is not willing to lodge an appeal because it would be doomed to failure (so-called ‘merits test’);[81]
  • Ensuring legal representation during the appeal procedure, in particular by preparing and writing an appeal;
  • Informing the asylum seeker of the other possibilities for legal advice and representation for lodging an appeal.

In cases where the application is being channeled into the extended procedure, legal representatives must conduct an “exit interview” with the applicant in order to inform him/her of the further course of the asylum procedure and of the possibilities for legal advice and representation in the extended procedure (see below).

The legal representation lasts, under the accelerated and the Dublin procedure, until a legally binding decision is taken, or until an incidental decision on the allocation to the extended procedure is issued by the SEM. It also extends to a possible appeal procedure in front of the Federal Administrative Court. It ends when the assigned legal representative informs the asylum seeker that he or she does not wish to submit an appeal because it would have no prospect of success (so called “merits-test”). This should take place as quickly as possible after notification of the decision to reject asylum in order for the asylum seeker to find another legal representative if wished.[82] The mandated legal representative should give the contact of other legal advice offices, but it is unclear if this always occurs in practice.

In some cases, asylum-seekers awaiting a decision at first instance or for whom an appeal has been lodged have been allocated to a canton without their legal representative being informed. Furthermore, due to COVID-19, some applicants have been transferred to other centres within the same asylum region or even in another region without the legal representatives being informed beforehand.

The introduction of legal counsel and representation during the first instance procedure is a major change in the history of Swiss asylum procedures and requires constant efforts on both the authorities and legal protection sides to acknowledge and understand their mutual roles. UNHCR has published a series of recommendations addressed to legal counselors and representatives as well as managers to ensure a legal protection of good quality.[83]

The Coalition of Independent Jurists for the right of asylum, gathering several lawyers and NGOs working on asylum cases, has published an independent evaluation of the first year of implementation of the asylum reform. The report partly focuses on the work of the mandated legal protection, pointing to a series of problematic issues. On one hand, the Coalition raises the question of the independence of such mandated organisations, noting that they are very cautious when it comes to taking position in the public space.[84] The geographical proximity with the SEM in the federal centers is also reflected in the perceptions of asylum seekers, who do not always take the independence of their legal representative for granted.[85] The report also points at insufficient coordination among the various mandated organisations that have missed, according to the Coalition, an opportunity to jointly influence the development of case law in the interests of asylum seekers.[86]

In this evaluation, the Coalition also analysed quantitative data provided by the Federal Administrative Court concerning the rates of appeals and concluded that the legal protection too frequently revokes its mandate. The average rate of appeal submitted by the officially mandated legal representation is 12.5%, however it varies greatly from one region to another, ranging from 4.5% in East Switzerland to 19.3% in West Switzerland.[87] The data show that almost one third of the appeals that were admitted by the Court or resulted in a referral to the SEM for further instruction was not filed by the legal protection of the federal centers but either by external representatives or in the name of the applicant (without official representation). Moreover, in more than half (90 out of 158) of the appeals submitted by an external representative, the Court had considered the appeal as having a chance of success. The Coalition interpreted this data as reflecting a shortcoming of the legal protection regime, given that introducing an appeal when it is not doomed to fail is part of the legal protection mandate financed by SEM in accelerated procedures (Art. 102h(4) AsylA).[88] Revocation of mandates are particularly problematic given the geographic isolation of some federal centers and the short deadlines for introducing an appeal, which can make it practically impossible to find a legal representation and hence prevent the asylum seeker from accessing an effective remedy. This problem is more or less accentuated depending on the region the asylum seeker was allocated to, as discussed above, which also creates unequal treatment.

No statistical data are available on the number of asylum seekers having renounced the legal representation during their asylum procedure nor on the number of asylum seekers having appointed an external independent lawyer.[89]

The extended procedure (allocation to a canton)

Following the allocation to a canton, asylum seekers may contact a legal advice agency or the legal representative allocated free of charge at relevant steps of the first instance procedure before the decision, in particular if an additional interview is held on the grounds for asylum.[90] In fact, usually there is a change of legal representation after the triage in the extended procedure. However, the legal representative assigned at the federal asylum centre can continue to represent the asylum seeker in exceptional cases if a relation of trust has developed.[91]

Following a public call for tenders, the SEM appointed several organisations active in the cantons to provide legal protection after the asylum seeker’s allocation to a canton.[92] An updated list of all organisations providing legal representation for asylum seekers in the different regions of Switzerland is available on the website of the Swiss Refugee Council.[93]

The system of legal representation in the extended procedure implemented by the SEM covers solely the decisive steps of the asylum procedure. It does not include the submission of an appeal to the Federal Administrative Court, a task for which they could be reimbursed afterwards by the Court if the appeal is not considered as doomed to fail. Furthermore, several activities traditionally carried out by the legal advice offices active in the cantons do not fall within the scope of application under the new Asylum Act and the related ordinances, for instance family reunification procedures, contacts and reaching out health professionals or questions relating to accommodation.[94] When asylum seekers are attributed to a canton where another language is spoken, this can represent an obstacle for the legal representative. Complementary interviews will be conducted in the initial federal asylum centre in the language of that centre, and the decision will also be written in that language. A further obstacle for legal representatives in the extended procedure is that the SEM does not allow access to the minutes of the interview on the asylum grounds, except if there is a complementary interview, in which case they only have access 30 minutes before that interview. This time is insufficient to prepare for the interview, especially if it is in a language that the legal representative does not completely master.

Access to legal advice and representation under the old procedure 

People who have lodged an application for international protection prior to 1 March 2019 as well as those with a multiple application have no systematic access to legal representation. They can receive free legal support at local legal advisory offices, especially if they have received a negative asylum decision. In those cases, the office will analyse the decision and a legal representative will file an appeal if this is considered as likely to succeed. At least one office is present in each canton (see the list provided by the Swiss Refugee Council),[95] and most of them are in charge of legal assistance under the extended procedure as well.

During the lockdown in spring 2020, many legal advisory offices for asylum seekers had to close their open consultations or restrict access to them. Following the lockdown, they could at least partially re-open to the public. Some offices have reinstituted open consultations while others have restricted access and require from the asylum seekers to make an appointment unless they have very urgent matters.

Access to legal representation for asylum applications lodged in detention

If a person is in prison or detention, it is also the cantonal authority (from the canton that has ordered the detention or the execution of a sentence) that accepts the asylum application. The cantonal authority establishes the personal data of the concerned person, takes pictures, confiscates the travel and identity papers and takes the fingerprints if necessary. The cantonal authority then informs the SEM about the asylum application. In case the applicant is released, he or she is issued an N permit by the cantonal authority.[96] In the context of the asylum reform that entered in force in March 2019, which provides free legal representation during the asylum procedure, it was not clear whether detained asylum seekers would also have access to legal assistance. The SEM assumed that this was not the case, since the persons concerned do not reside in a federal asylum centre. In November 2019, the Federal Administrative Court clarified that the fact that the person concerned had lodged his or her asylum application while in detention does not dispense the competent authority of its duty to duly investigate the application in accordance with the law in force, in particular to ensure the right to free legal advice and representation.[97] During 2020, the SEM has not provided access to legal assistance and representation to people applying for asylum while in prison or detention, although there have been several judgements ruling that such access must be guaranteed.[98] There are no statistical data available on the number of asylum applications made in detention.[99]

 

[1]  Article 26 AsylA.

[2]  Article 26 AsylA.

[3] Article 25a AsylA.

[4]  Article 8-bis AsylA.

[5]   Article 31a AsylA.

[6]  Article 26b AsylA

[7]   Article 44 AsylA; Article 83 FNIA.

[8]  Article 26c AsylA

[9]  Article 37 (2) AsylA

[10] Article 20c AO1

[11]  Article 49 AsylA.

[12] Asylum is not granted if a person with refugee status is unworthy of it due to serious misconduct or if he or she has violated or endangered Switzerland’s internal or external security (Article 53 AsylA). Further, asylum is not granted if the grounds for asylum are only due to the flight from the applicant’s native country or country of origin or if they are only due to the applicant’s conduct after his or her departure, so-called subjective post-flight grounds (Article 54 AsylA).

[13] Article 44 AsylA; Article 83 FNIA.

[14] Data provided by the SEM, 19 March 2021.

[15] Article 26d AsylA

[16]  Article 24(4) AsylA.

[17] Federal Administrative Court, Decision E-6713/2019, 9 June 2020. On this jurisprudence see also: Lucia Della Torre and Seraina Nufer, Between Efficiency and Fairness: The (new) Swiss Asylum Procedure, in: Journal of Immigration, Asylum & Nationality Law, Vol. 34 No. 4 2020, p. 317.

[18] Judgements of the Federal Administrative Court E-4534/2019 of 25.9.2019, c. 7.5.1; E-4367/2019, of 9.10.2019 c. 7; E-4329/2019 of 7.11.2019, c. 7; E-5624/2019 of 13.11.2019, c. 5.3.2

[19] Judgements of the FAC E-3447/2019 of 13.11.2019, c. 5.3.2, E-244/2020 of 31.01.2020, c. 3.7, E-5850/2019 of 21.01.2020, c. 8.4; 9, D-6508/2019 of 18.12.2019, c. 5.6.

[20] See for example judgement E-3447/2019 of 13.11.2019 or E-5490/2019 of 5.11.2019.

[21] SEM, « Fiche d’information: chiffres clés relatifs aux procédures d’asile accélérées », available at: https://bit.ly/2NOki2x.

[22] Data provided by the SEM, 19 March 2021.

[23]  Data provided by the SEM, 19 March 2021.

[24] Article 37 AsylA.

[25] Article 23(2) AsylA.

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

[27]   SEM, Procédures d’asile accélérées: premier bilan, 6 February 2020, available (in French) at: https://bit.ly/37K00Ly.

[28] OSAR, L’accélération ne doit pas prétériter l’équité et la qualité, 4 February 2020, available (in French) at: https://bit.ly/2ugVu9t.

[29] Data provided by the SEM, 19 March 2021.

[30]  SEM 2020 Statistics and additional data provided by the SEM, 19 March 2021.

[31]  Article 18 (2bis) AsylA.

[32] Article 37b AsylA.

[33] SEM, Demandes d’asile priorité aux procédures Dublin et aux procédures accélérées, 9 May 2019, available (in French) at: https://bit.ly/2u0JQ22.

[34] SEM, Strategy for processing asylum requests: Fast-tracking of unjustified applications, 17 July 2019, available at: https://bit.ly/2uQOaS2.

[35] The list of countries with a law recognition rate is available at: https://bit.ly/2Tm0ZOt.

[36] Data provided by the SEM, 19 March 2021.

[37]  Data provided by the SEM, 27 April 2021.

[38]  Article 36 AsylA.

[39] Data provided by the SEM, 27 April 2021.

[40]  Article 29 AsylA.

[41]  Article 29 AsylA.

[42] Data provided by the SEM, 19 March 2021.

[43]  In April, the Federal Department of Justice and Police has opened the consultation procedure for an extension of the validity of the Ordinance COVID-19 Asylum until 31 December 2021. See https://bit.ly/3y4vs5t.

[44] Article 4 of the Ordinance COVID-19 Asylum.

[45] Statement of the Swiss Refuge Council on 1st April 2020, available at: https://bit.ly/36W9B3e. A more detailed and recent statement of 20.11.2020 can be accessed at: https://bit.ly/2USrAlE.

[46] Legal note by Prof. Tanquerel, available at: https://bit.ly/3l00Zhc

[47]  Further information about the interview on the grounds for asylum and the quality criteria to be followed by SEM employees in charge of the interviews is available in the handbook of the SEM (chapter C6.2), at: https://bit.ly/35WrShA.

[48]  Data provided by the SEM, 19 March 2021.

[49] Data provided by the SEM, 27 April 2021.

[50]  Handbook SEM, chapter D2, p. 18. Available at: https://bit.ly/35UBQAg.

[51] Article 29(1-bis) AsylA.

[52] SEM, Handbuch Asyl und Rückkehr. Anhörung zu den Asylgründen, available (in German) at: http://bit.ly/1Fk7AXb, 8; Asylum Appeals Commission, Decision EMARK 1999/2 of 27 October 1998, para 5.

[53] SEM, Role of the interpreter in the asylum procedure, January 2016, available (in English) at: https://bit.ly/2IUogEp; see also SEM, Requirements for interpreters and translators (no date), available (in English) at: https://bit.ly/3l1nfqQ.

[54] On the issue of interpretation see in particular: OSAR, L’interprétariat dans le domaine de l’asile n’est pas une question mineure, 5 July 2017, available (in French) at: https://bit.ly/2HQXGI2 and Le Temps des réfugiés, Asile: les superpouvoirs des interprètes; 16 May 2019, available (in French) at: https://bit.ly/2wIIt9I.

[55]Le Temps des réfugiés, Plusieurs Etats européens procèdent déjà à l’enregistrement audio des auditions d’asile. Pourquoi pas la Suisse?, 4 October 2019, available (in French) at: https://bit.ly/3c6jFbG.

[56]  Jasmin Caye, Auditions : une mauvaise traduction et la vie d’un demandeur d’asile peut basculer, Vivre Ensemble 177, May 2020, available at : https://bit.ly/35ZEmFf.

[57] Article 29(3) AsylA.

[58]Article 105 AsylA. Most judgments of the Federal Administrative Court are available at: http://bit.ly/1NgE8vb.

[59]  Article 83(c)-(d) Federal Supreme Court Act.

[60] Article 106 AsylA.

[61] Article 106(1) AsylA. Appropriateness of a decision means situations in which the determining authority has a certain margin of appreciation in which it can manoeuver. Within this margin of appreciation, there can be decisions that are “inappropriate” but not illegal because they still fall within the margin of appreciation and they respect the purpose of the legal provision, but the discretionary power was used in an inappropriate way.

[62] For a more detailed analysis of the discretionary power of the determining authority and the competence of the Federal Administrative Court, see Federal Administrative Court, Decision E-641/2014, 13 March 2015.

[63] For a more thorough analysis of the changed provision in the Asylum Act, see Thomas Segessenmann, Wegfall der Angemessenheitskontrolle im Asylbereich (Art. 106 Abs. 1 lit. c AsylG), ASYL 2/13, 11ff.

[64] Article 33a APA.

[65]Swiss Refugee Council, Instructions for filing and appeal and Appeal template, available (in several languages) at: https://bit.ly/39cydHU.

[66] Article 33a and 52 APA.

[67] Art. 10 of the Ordinance COVID-19 Asylum.

[68]  Article 109 AsylA.

[69] TAF, Nouveau droit d’asile Bilan; 1.03.2019-31.08.2020; statistics available at: https://bit.ly/3pTfLtM; press release available at: https://bit.ly/371qeL7.

[70]  Information provided by the Federal Administrative Court, 22 February 2019.

[71]  Article 55(1) APA.

[72]   Article 63(4) APA.

[73]   For example ECtHR, MA v Switzerland, Application No 52589/13, Judgment of 18 November 2014. In this case, the Federal Administrative Court delivered an interim decision in which it declined the applicant’s request for legal aid, reasoning that his application lacked any prospects of success. In its preliminary assessment of the case, The Court noted that the applicant was deprived of additional opportunities to prove the authenticity of the second summons and the Iranian conviction before the national authorities because the Federal Administrative Court ignored the applicant’s suggestion of having the credibility of the documents further assessed. It did not follow up on the applicant’s proposal to submit the copies to the Migration Board for further comments, but instead decided directly on the basis of the applicant’s file and his appeal.

[74] Federal Supreme Court, Decision 12T_2016, 16 October 2017. 

[75] TAF, Nouveau droit d’asile Bilan, cited above.

[76] Swiss Refugee Council, Nouvelle procédure d’asile: Bilan de l’OSAR, 4 February 2020, available at: https://bit.ly/33ctkuI; Coalition des juristes indépendant-e-s pour le droit d’asile, Restructuration du domaine de l’asile: Bilan de la première année de mise en œuvre, 8.10.2020, available at: https://bit.ly/2J4uEsg; Lucia Della Torre and Seraina Nufer, Between Efficiency and Fairness: The (new) Swiss Asylum Procedure, in: Journal of Immigration, Asylum & Nationality Law, Vol. 34 No. 4 2020, p. 317.

[77] Article 14 APA.

[78] Article 102f AsylA.

[79] SEM, Asile : attribution des mandats pour le conseil et la représentation juridique dans les centres fédéraux, 17 October 2018, available (in French) at: https://bit.ly/3936CpN.

[80]  Article 52 OA1 and seq.

[81]  Depending on the organisation in charge of legal assistance, several steps may have been taken to provide a framework for this sensitive assessment.  For example, the principle of double-checking each negative decision received: a manager or more experienced legal officer will systematically evaluate the decision and discuss it with the legal officer in charge of the case. In addition, internal recommendations or guidelines relating to the practice of the authorities make it possible to guide and give clear information to the lawyers in charge of making this merits test.

[82] Article 102h AsylA.

[83] UNHCR, Recommandations du HCR relatives au conseil et à la représentation juridique dans la nouvelle procédure d’asile en Suisse, March 2019, available (in French) at: https://bit.ly/3nQGyFg. Available also in German and Italian.

[84]  Coalition des juristes indépendant-e-s pour le droit d’asile, Restructuration du domaine de l’asile: Bilan de la première année de mise en œuvre, September 2020, available in French at: https://bit.ly/3mJPg7u and in German at: https://bit.ly/34vbKCG. Page 13, ch. 4.2.8.

[85]  Ibid, p. 8, ch. 4.1.6.

[86]  Ibid, p. 12, ch. 4.2.6.

[87]  Ibid, p. 26.

[88]  Ibid, p. 10, ch. 4.2.2.

[89]Information provided by the SEM, 27 April 2021.

[90]  Article 102l AsylA.

[91]  Article 52f(3) OA1.

[92] SEM, Loi sur l’asile révisée : le SEM désigne les bureaux de conseil juridique habilités, 26 February 2019, available (in French) at: https://bit.ly/2TdD2qO.

[93] The list is available at: https://bit.ly/33cXspz.

[94] OSAR, Conseil et représentation juridique, available (in French) at: https://bit.ly/3nQiG4C.

[95] The list is available at: https://bit.ly/33cXspz.

[96] Article 8(3) AO1; Directive III Field of Asylum, Das Asylverfahren, para 1.1.1.4.

[97]  Federal Administrative Court, Decision D-5705/2019, 25 November 2019.

[98] Federal Administrative Court, Decisions D-5705/2019 of 25.11.2019, E-1401/2020 of 1.04.2020, D-5480/2020 of 19.11.2020.

[99]  Information provided by the SEM, 27 April 2021.

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