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. 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).
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. 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 now allowed to lodge a new application within 3 years, unless this restriction would amount to a violation of the Refugee Convention. 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.
In certain cases, the SEM will take an inadmissibility decision, 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.
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. 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).
Accelerated procedure: Unless a Dublin procedure is initiated, the accelerated procedure itself starts as soon as the preparatory phase is completed. It lasts a maximum of eight working days and includes mainly the following stages:
- 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 second interview, 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. 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, 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. If the removal is either unlawful, unreasonable or impossible, the applicant will be admitted temporarily (F permit) to 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).
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 or if the maximum length of stay of 140 days in a federal centre is reached. 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” (“Zwischenverfügungen” in German or “décision incidente ou préparatoire” in French), which means a purely procedural decision that cannot be appealed before the final decision is issued so as to avoid lengthy procedures.
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. 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.
Under the former asylum system, the length of the asylum procedure at first instance varied significantly from what was foreseen by law. In 2019, the average duration was 340.5 days, compared to 465.7 days in 2018, and an average of 339.8 days in 2017.
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. In contrast to the very positive initial assessment made by the SEM, several organisations, including OSAR, stressed the need to ensure that the speeding up of procedures should not be to the detriment of the quality of the examination of asylum applications and the decision-making process.
8,377applications were pending at first instance on 31 December 2019.
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 minor are examined as a matter of priority. In addition, SEM defines an asylum processing strategy in which it determines an order of priority. 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. Applications that can be processed under the Dublin procedure or under an accelerated procedure are given priority treatment, as well as those lodged by nationals origination 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.
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 applicant undergoes a short preliminary interview that is mainly held to determine whether Switzerland is competent to examine the merits of the asylum application. This is the so-called Dublin interview (see section on Dublin: Personal interview).
In case the SEM intends to take an inadmissibility decision (see section on Admissibility Procedure), the applicant is granted the right to be heard 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. In those cases, there is no second interview.
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). 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. The following are the main elements discussed during the asylum interview:
- 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
Under the accelerated procedure, SEM may subsequently decide to carry out a complementary asylum interview or to assign the applicant to the extended procedure if additional investigative measures are necessary. 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 a hearing, at which he is accompanied by his legal representative. The hearing 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. It may 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 composition
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”. 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 . 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.
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 (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 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.
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 are not professional (imprecise, no literal translation but a summary, lacking linguistic competence). 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.
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.
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). Before signing the minutes, the applicant has the possibility to make further comments or corrections to the minutes.
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.
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). A further appeal to the Federal Supreme Court is not possible (except if it concerns an extradition request or detention in Dublin cases). The Federal Administrative Court can either deliberate on the merits of a case and issue a new, final decision or dismiss the decision and send the case back to the SEM for reassessment.
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.
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. 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. 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 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. 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, 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.
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.
The time limit for lodging an appeal against negative decisions on the merits is 7 opening days if the decision was issued under the accelerated procedure and 30 days under the extended procedure. 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. In reality, the average processing time for the Court to take a decision is longer. Between 2015 and 2017, the average duration of an appeal procedure before the Federal Administrative Court was 159 days. More recent statistics on average processing times at second instance are not available.
In general, an appeal has automatic suspensive effect in Switzerland. Appeals in Dublin cases are an exception: suspensive effect is not automatic but can be granted upon request.
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), 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. In fact, 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). In October 2017, the Federal 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.
Another obstacle results from the limitation of the competence of the Federal Administrative Court. Within the appeal procedure, the Court has the possibility to order a hearing if the facts are not elucidated in a sufficient manner. In practice, it has hardly ever made use of this possibility.
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). 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 contracts one or more service providers from recognised charitable organisations to carry out these tasks in the centres of the Confederation and at the airports of Geneva and Zurich. 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. It currently comprises 4 organisations which are present in the 6 federal centres, namely:
Organisations providing legal assistance at first instance
Name of organisation
Source: Swiss Refugee Council, available at: https://bit.ly/2Xflxu2.
Although mandated by the migration authorities, independence and confidentiality in the work of legal representation is guaranteed.
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:
- Informing and advising asylum seekers;
- Informing asylum seekers about their chances of success in the asylum procedure;
- Ensuring the preparation – and participating to – 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 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’);
- 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.
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 steps of the procedure at first instance relevant to the decision, in particular if an additional interview is held on the grounds for asylum. Following a public call for tenders, the SEM appointed several organisations active in the cantons to provide legal protection after the award to a canton.
The system of legal representation in the extended procedure implemented by the authorities covers solely the decisive steps of the asylum procedure. Hence, 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 approaches to health professionals or questions relating to accommodation.
 Article 26 AsylA.
 Article 26 AsylA.
 Article 25a AsylA.
 Article 8-bis AsylA.
 Article 31a AsylA.
 Article 26b AsylA
 Article 44 AsylA; Article 83 FNIA.
 Article 26c AsylA
 Article 37 (2) AsylA
 Article 20c AO1
 Article 49 AsylA.
 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).
 Article 44 AsylA; Article 83 FNIA.
 Article 26d AsylA
 Article 24(4) AsylA.
 Article 37 AsylA.
 Article 23(2) AsylA.
 Information provided by the SEM, 12 February 2020.
 Information provided by the SEM, 21 January 2019.
 Information provided by the SEM, 12 January 2018.
 Article 18 (2bis) AsylA.
 Article 37b AsylA.
 Article 36 AsylA.
 Article 29 AsylA.
 Article 29 AsylA.
 Article 29(1-bis) AsylA.
SEM, Kompetenzprofil Dolmetschende BFM, 2011.
 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.
 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.
 Article 29(3) AsylA.
 Article 83(c)-(d) Federal Supreme Court Act.
 Article 106 AsylA.
 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.
 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.
 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.
 Article 33a APA.
 Article 33a and 52 APA.
 Article 109 AsylA.
 Information provided by the Federal Administrative Court, 22 February 2019.
 Article 55(1) APA.
 Article 63(4) APA.
 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.
 Federal Court, Decision 12T_2016, 16 October 2017.
 Article 14 APA.
 Article 102f AsylA.
 Article 52 OA1 and seq.
 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.
 Article 102h AsylA.
 Article 102l AsylA.
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 at: https://bit.ly/2RhFaxs.