Overview of the main changes since the previous report update

Switzerland

Country Report: Overview of the main changes since the previous report update Last updated: 30/11/20

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Asylum procedure

 

  • Access to the territory: Despite the significant decrease in the number of arrivals at the Italo-Swiss borders in general, OSAR was informed in September 2019 of people being pushed back at the border between Como and Chiasso, including minors. This is in violation of the United Nations Convention on the Rights of the Child according to which the best interest of the child should take precedence over any other consideration and should always receive careful assessment.[1]

 

  • New asylum system: The Swiss asylum system and its legal framework have been extensively restructured following the substantial modifications that entered into force in March 2019.[2] The overall aim of the new system is to significantly speed up the asylum procedure, including by bringing together the main actors of the procedure “under the same roof”. Asylum procedures are carried out in federal centres located in six defined regions in Switzerland. The reform sets up several procedures (accelerated, extended, Dublin) strictly limited in time, thus shortening processing times and deadlines for appeals.

 

  • Access to information and to 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).[3] This aims to ensure a fair asylum procedure given that the latter has been significantly shortened. The State Secretariat for Migration (SEM) has contracted several organisations responsible both for the provision of legal assistance and information throughout the asylum procedure.

 

  • Individual guarantees under Dublin procedures: In 2019 and early 2020, the Federal Administrative Court issued several landmark decisions on the necessity to obtain individuals guarantees for the purpose of Dublin transfers to Italy, Bulgaria and Croatia. While the Court ruled that the Swiss authorities must obtain additional individual guarantees from the Italian authorities so as to ensure adequate access to medical care and accommodation for seriously ill asylum seekers and families in Italy;[4] it considered that there are no systematic flaws in the Bulgarian asylum system which would justify a general suspension of transfers to the Bulgaria.[5] As regards Dublin transfers to Croatia, the Court underlined that the current situation in the country, in particular the practice of push-backs at the border, must be taken into consideration by the Swiss authorities.[6]

 

  • Use of medical reports: The use of medical reports during the asylum procedure has been raised as one of the main concern resulting from the entry into force of the new asylum procedure in 2019. The shortened deadlines put the asylum authorities under significant pressure and risk to undermine an adequate examination of medical needs and related evidence. This was confirmed by the recent case law of the Federal Administrative Court which highlighted several shortcomings in this regard.[7]

 

Reception conditions

 

  • Departure centres: The enforcement of the new asylum procedure has resulted in the creation of new types of federal asylum centres in addition to the six federal centres where asylum applications can be lodged. These so-called “departure centres’ accommodate asylum seekers who are falling – or are likely to fall – under the Dublin procedure, as well as those subject to a negative decision within the accelerated procedure. They are located in remote areas and difficult to access with public transportation, which hinders the possibility of visits and limits the freedom of movement.

 

  • Specific centres for uncooperative asylum seekers: The new legislation of March 2019 introduced a legal basis for the creation of specific centres for uncooperative asylum seekers. i.e. those who endanger public security and order or who seriously disrupt the normal operation of the federal asylum centres may be accommodated there.[8] However, the only supervised centre which was operating in Les Verrières, Canton of Neuchâtel, was temporarily closed on 1 September 2019,[9] while the plans to establish a second centre is on hold due to the low numbers of applicants.

 

  • Vulnerable applicants in reception: While the reception system did not face any shortages given the decrease in the number of applicants, it still falls short of providing adequate reception to vulnerable groups. This includes a lack of identification mechanism, affecting in particular victims of sexual violence and single women, while unaccompanied children continue to be accommodated with adults. The Government itself published a report in October 2019 highlighting issues relating to the lack of training of reception staff as well as the lack of adequate support to asylum seekers.[10]

 

  • Access to the labour market: Since 1 March 2019, asylum seekers staying in a federal processing centre are no longer allowed to engage in a gainful employment.[11] Asylum seekers who are entitled to pursue gainful employment in accordance with the immigration provisions (who are mainly persons already living in Switzerland with a residence permit and who submit a subsequent asylum application) or who participate in charitable occupational programmes are not subject to this restriction, however.[12]

 

Detention of asylum seekers

 

  • Detention orders: Since the entry into force of the new asylum procedure on 1 March 2019, the State Secretariat for Migration (SEM) is no longer competent for detention orders. This falls under the exclusive competence of cantons.[13] Subsequently, appeals against detention orders must first be challenged at cantonal level before being brought in front of the Federal Administrative Court. One exception applies to detention orders at airports which still falls under the responsibility of the SEM, as the latter is responsible for granting entry or not to Swiss territory.

 

  • Legal assistance in detention: Following the reform of the asylum system in March 2019, the Federal Administrative Court clarified in a judgment of November 2019 that a person who lodges an asylum application in detention should be granted access to free legal advice and representation.[14] Detained asylum seekers have thus systematically access to legal assistance.

 

Content of international protection

 

  • Restrictions on freedom of movement and travels: On 1 April 2020, various amendments to laws and regulations in the field of migration have come into force. This date was set by the Federal Council at its meeting on 19 February 2020. Among the changes made by the Parliament to the Foreign Nationals and Integration Act (FNIA) is the fact that the SEM may prohibit recognised refugees from travelling to a third country, in particular to neighboring countries of their country of origin, in order to enforce the ban on travelling home.[15]

 

  • Cessation and review: The SEM continued to review the temporary admission of Eritrean nationals, which has been heavily criticised by NGOs,[16] including the Swiss Refugee Council.[17] Until October 2019, the SEM found that the temporary admission was no longer valid in 82 cases (2.7%).[18] Most of the appeals submitted against these decisions have been rejected by the Federal Administrative Court, others are still pending.

 

  • Access to the labour market: Since January 2019, temporarily admitted persons may work anywhere in Switzerland if the salary and employment conditions applicable to the location, profession and sector are satisfied. The employer must report the start or end of employment to the cantonal authority responsible for the place of work in advance. The report must include a declaration, stating that the employer is aware of the salary and employment conditions customary for the location, profession and sector, and that he or she will abide with them.

 


[1] See chapter “9.6.3 Pushbacks at the border”, in: Swiss Refugee Council OSAR, Reception conditions in Italy – Updated report on the situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, in Italy, January 2020, available at: https://bit.ly/2SARryi.

[2] SEM, Asylum procedures available at: https://bit.ly/33NaCcb.

[3] Article 102f AsylA.

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

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

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

[7] See for instance: OSAR, L'accélération ne doit pas prétériter l'équité et la qualité, 4 February 2020, available (in French) at: https://bit.ly/2SJPiAv; Vivre Ensemble, Procédures accélérées et accès aux soins. L’équation impossible? | Prise en considération de l’état de santé: des procédures bâclées, June 2019, available (in French) at: https://bit.ly/32djGq4.

[8]Article 24a AsylA states that asylum seekers

[9] Information on it is available at: https://bit.ly/2VdzR5b.

[10] Swiss Confederation, Rapport sur la situation des femmes et des filles relevant du domaine de l’asile, October 2019, available in French at: https://bit.ly/2w01y6Z.

[11] Article 43(1) AsylA, as amended on 25 September 2018, BBI 2015 7181 and AS 2018 2855.

[12] Article 43(4) AsylA, as amended on 25 September 2018, BBI 2015 7181 and AS 2018 2855.

[13] Article 80(1) and 80 (1bis) Foreign Nationals and Integration Act (FNIA).

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

[15] Further information is available (in French) at: https://bit.ly/2VaWTcX. 

[16] 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.

[17].Swiss Refugee Council, ‘La Confédération mise sur l’intimidation plutôt que sur des solutions’, 3 September 2018, available (in French) at: https://bit.ly/2TJGCbr.

[18] Département fédéral de justice et police (DFJP), Situation des requerants d’asile érythréens en Suisse: pratique en matière d’asile et de renvoi, levée des admissions provisoires, retour et principe de l’aide d’urgence, Rapport du Département fédéral de justice et de police (DFJP) en réponse à la lettre du Haut-Commissariat des droits de l’homme (HCDH) du 19 juin 2019, 30 novembre 2019, available at: https://bit.ly/38RFAS4.

 

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