Author
Refugees with asylum[1]
The automatic cessation of the asylum status is possible if a person has lived abroad for more than one year. If a person is granted asylum in another country or he or she renounces his or her refugee status, the protection status ceases as well. The renouncement leads to the immediate cessation of the status. Refugee status and asylum expire as well if the foreign national acquires Swiss nationality. Finally, asylum expires if an expulsion order under criminal law has become legally enforceable.
In 2021, asylum expired in 1,274 cases resulting in cessation of the status for one of the reasons mentioned above.[2]
Temporary admission[3]
According to the law, the SEM should periodically examine whether the requirements for temporary admission are still met. In practice this does not happen in every case due to practical and capacity reasons. The SEM should revoke temporary admission and order the enforcement of removal or expulsion if the requirements are no longer met. It also expires in the event of definitive departure, an unauthorised stay abroad of more than two months, or on the granting of a residence permit.
The review is based on an individual assessment. When a conflict ends, it is possible that a possible revocation is examined for all members of the group who were specifically concerned by this conflict. This happened, for example, at the end of the conflicts in ex-Yugoslavia in the 1990s. Recently this has hardly ever been the case, however, as most of the relevant conflicts are long-standing (Somalia, Afghanistan, Iraq, Syria). Even if cessation is considered for a group of persons, it is examined in each case individually.
In 2018, the Swiss Parliament has tasked the SEM with the review of the temporary admission of 3,400 Eritrean nationals. This project was set in a context of significant hardening of the practice of both the SEM and the Federal Administrative Court with regard to asylum applications submitted by Eritreans. In fact, since a leading decision issued by the Federal Administrative Court in 2017, the enforcement of removal is not anymore considered generally unreasonable (see Eritrea). This approach has been criticised by NGOs,[4] including the Swiss Refugee Council.[5] Between 2018 and 2020, the SEM examined and reviewed the temporary admission of 3,400 Eritrean nationals, concluding that removal was reasonable and revoking the temporary admission status in 83 cases (2.4%). 63 of these decisions have entered into force by December 2020, while six appeals were admitted and the 14 cases are still in appeal procedure.[6]
In October 2020, the Federal Administrative Court has clarified a question that had remained unsettled, namely that the revocation of temporary admission due to the consideration that the obstacles to the enforcement of removal no longer exist always requires an examination of proportionality taking into account the degree of integration of the person concerned.[7]
Apart from the review of the necessity of protection due to the situation in the country or the situation of the person, temporary admission ceases automatically if a person leaves Switzerland permanently, if he or she is abroad for more than two months without a permission to travel, or if he or she receives a residence permit.[8] A person’s departure from Switzerland is already considered permanent if the person asks for asylum in another country.[9] This can lead to unclear situations if persons are transferred back to Switzerland from other European states, and then find that their temporary admission has ceased in the meantime.
As in general any ruling can be subject to an appeal,[10] the cessation of the protection status can also be appealed. The appeal must be filed within 30 days of notification of the ruling.[11] No legal assistance is foreseen in the law for this specific case but the general legal aid scheme is applicable: If it is necessary for safeguarding the right of the person concerned, the court can appoint a lawyer to represent the applicant.[12]
In 2021, 5,803 temporary admissions were ceased, meaning for example that the person has obtained another residence status or has left Switzerland.[13] In 5’207 cases, another status was granted.[14]
[1] Article 64 AsylA.
[2] Information provided by the SEM, 1 April 2022.
[3] Article 84 FNIA.
[4] See in particular ODAE, Rapport thématique – Durcissements à l’encontre des Érythréen·ne·s : une communauté sous pression, 29 November 2018, available in French at: https://bit.ly/2SCdBAW.
[5] Swiss Refugee Council, La Confédération mise sur l’intimidation plutôt que sur des solutions, 3 September 2018, available in French (and German) at: https://bit.ly/3O8Dtyr.
[6] SEM, Press Release, 18 December 2020, available in French (and German and Italian) at: https://bit.ly/3pxbTxv. See also the report of the Federal Council responding to the motion no 18.3409 by Müller Damian of 29 May 2018, available in French at: https://bit.ly/3mWAOZP.
[7] Federal Administrative Court, Decision E-3822/2919, 28 October 2020.
[8] Article 84(4) FNIA.
[9] Article 26a(a) Ordinance on the Enforcement of the Refusal of Admission to and Deportation of Foreign Nationals (OERE).
[10] Article 44 Federal Act on Administrative Procedure.
[11] Article 50 Federal Act on Administrative Procedure.
[12] Article 65(2) Federal Act on Administrative Procedure.
[13] Information provided by the SEM, 1 April 2022.
[14] Information provided by the SEM, 1 April 2022.