Author
The Asylum Act provides a specific procedure for subsequent applications. The procedure is described in Articles 111c AsylA and 111d AsylA (regarding the costs) and in Article 7c AO1 (procedural aspects). Every application submitted within 5 years of the asylum decision or removal order becoming legally binding is considered subsequent application. As such it must be submitted in writing by post and include a statement of the grounds. The responsible authority is the SEM, as in cases of first applications in the regular procedure.
The subsequent application should not be confused with a request for re-examination. An application is to be treated as a subsequent asylum application if there are significant reasons which have an impact considering the examination of refugee status. On the other hand, if the new application is not based on grounds regarding refugee status, but only regarding obstacles to return (for example medical reasons), it is treated as a request for re-examination.[1] The distinction is difficult in practice, even for persons specialised in the field of asylum.
There is no obligation for the SEM to provide a personal interview, and in the majority of cases, no interview takes place. Nevertheless, it has the duty to examine all arguments carefully and individually.[2]
Unlike in the regular procedure, during the examination time of the application, the asylum seeker is not granted a place to stay in federal asylum centres. Subsequent applicants will be most of the time accommodated in cantonal emergency shelters (see section on Access and forms of reception conditions). The application does also not have suspensive effect, but the SEM would grant this effect if it starts examining the application in detail. In practice, the deportation will be suspended pending the first opinion of the SEM on the subsequent application.
The procedure remains the same even with more than one subsequent application during the 5-year period after the asylum decision or removal order has become legally binding, except for unmotivated or repeated subsequent applications with the same motivation. The latter will be dismissed without a formal decision. The Federal Administrative Court has clarified that, normally, there is no legal remedy to appeal this dismissal decision.[3] However, if the SEM has applied this provision incorrectly, there is the right to an effective remedy for denial of justice.[4]
The legal advisory offices in the cantons can be asked for help in the procedure of a subsequent application. Their legal assistance will depend on their capacities and their estimation of the prospects of success. A list of such offices is available on the website of the Swiss Refugee Council.[5]
The number of persons lodging subsequent applications in 2022 was as follows:
| Subsequent applicants in Switzerland: 2022 | ||
| Main countries of origin | Number of applicants | Accepted |
| Sri Lanka | 275 | 8 |
| Afghanistan | 113 | 80 |
| Iraq | 103 | 21 |
| Eritrea | 54 | 23 |
| Iran | 48 | 8 |
| Ethiopia | 44 | 26 |
| Syria | 41 | 2 |
| Türkiye | 48 | 3 |
| Georgia | 37 | 0 |
| Armenia | 30 | 0 |
| Total | 1,144 | 249 |
Source: SEM, asylum statistics 2022 (7-10), available at: https://bit.ly/418U0Yk.
This makes for a recognition rate under subsequent applications of 22%, compared to 14% in 2021 and 13% in 2020.
[1] Asylum Appeals Commission, Decision EMARK 1998/1, 4 March 1998.
[2] Martina Caroni et al., Migrationsrecht, 3rd edition, Berne 2014, 342 et seq.
[3] Federal Administrative Court, Decision E-3979/2014, 3 November 2015.
[4] Federal Administrative Court, Decision E-5007/2014, 6 October 2016.
[5] Available at: https://bit.ly/33cXspz.