Asylum decision

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The Swiss Asylum Law defines the concession of Asylum and legal status of refugees in Switzerland as well the temporary protection for those who may need it and their repatriation.

Undocumented asylum seekers: decision to dismiss an application without entering into the substance of the case (DAWES) or a decision based on the merits of a request?
Upon applying for asylum, applicants are requested by the authorities in writing to submit travel documents or proof of identity within 48 hours. Within this deadline, applicants are supposed to provide only those documents they actually used on their journey to Switzerland; they are not meant to procure further or new documents. If applicants refuse to comply, Article 32(2)(a) of the Asylum Act provides that for formal reasons the asylum authorities will not examine the merits of an application but issue a decision to dismiss an application without entering into the substance of the case (DAWES). Yet, applicants still get an opportunity to have the merits of their case examined if, while interviewed, they can give convincing arguments explaining why the requested documents cannot be provided within 48 hours, or if based on the interview the refugee status under the provisions of Article 3 and 7 of Asylum Act is established. Applicants can also avoid a DAWES if they submit the required documents after the 48-hour deadline but before the Federal Office of Migration has reached a decision on their case. However, even if a DAWES has already been reached, the asylum authorities are still bound under Article 44(2) of the Asylum Act and Article 14(a) of the Federal Act on the Residence and Permanent Settlement of Foreign Nationals to examine whether there are any obstacles to the removal of rejected applicants to their native country. This, in turn, means that the authorities eventually will have to examine the merits of a case.

Further reasons for dismissing an application without entering into the substance of the case
Articles 32 to 35 of the Asylum Act provide an exhaustive list of reasons justifying a DAWES: Failure to provide appropriate documents is one reason. Likewise, failure to indicate that they have come to Switzerland in search of protection against persecution is another reason (Art. 32(1)). Other reasons are, for example, if applicants do not provide documentary evidence of their identity or give a false identity (Art. 32(a)(b)); if they deliberately and grossly violate their duty to co-operate with the authorities (Art. 32(2)(c)); if they can travel to another country where an application for asylum is still pending or which is responsible for processing their application in accordance with an international convention, e.g. the Dublin Agreement (Art. 32(2)(d)). Furthermore, asylum authorities can refuse to enter into the substance of a case if the applicant already applied for, and was denied, asylum in Switzerland or in the European Union/European Economic Area, and no new events have occurred in the meantime which may justify the granting of refugee status (Art. 32(2)(e and f). Likewise, the decision to dismiss an application without entering into its substance may be taken if a person has stayed illegally in Switzerland and submits the asylum claim solely to prevent expulsion from Swiss territory (Art. 33). The same applies to asylum seekers who originate from a country deemed safe (in short: safe country) by the Federal Council (Art. 34), or if temporary protection is withdrawn, and there is nothing to suggest that the person in question is subject to persecution (Art. 35). Finally, the Federal Office of Migration will renounce on a examination of a new demand of asylum which has been written off, unless the new demand contains relevant elements according to to Swiss Asylum Law (Art. 35a).

Decision after examining the substance of the case
If the prerequisites for processing an asylum application are fulfilled, the Federal Office for Migration first examines whether applicants are eligible for refugee status under the provisions of Article 3 of the Asylum Act. Persons requesting asylum are granted refugee status if their reasons for claiming asylum are credible, and if they are in danger of persecution as defined under the Asylum Act. Persons who do not fulfil the provisions for obtaining refugee status will have their application rejected and be ordered to leave Switzerland.

In the next stage of the asylum procedure, the Federal Office for Migration examines whether the asylum seeker whose application has been rejected can indeed be expelled from Switzerland. This stage consists of three steps: The Swiss asylum authorities must examine, first, whether the removal of a person is admissible (that is, whether it is in accordance with Switzerland’s international obligations); second, whether it is reasonable to remove a person to his home country or a third country on account of the general situation in the country in question; and third, whether the removal of the person is possible. If any one of these three conditions is not fulfilled, the Federal Office for Migration grants that person temporary protection in Switzerland.

Asylum seekers who are not eligible for refugee status and whose removal from Switzerland is admissible, reasonable and possible, are set a deadline by which they must leave Switzerland.

Statutory right of appeal
Applicants have the right to appeal against a negative decision or the dismissal of a case by the Federal Office for Migration (FOM). The appeal must be submitted to the Federal Administrative Tribunal (FAT).

When submitting an appeal, appellants must observe the following provisions:

  • Deadlines
    An appeal against a negative decision must be submitted to the FAT within thirty days after notification of the negative decision by FOM. An appeal against the dismissal of a case must be submitted to the FAT within five working days.
  • Petition, statement of reasons, documentary evidence
    The appeal should contain a clear request or petition (for example: the appellant requests temporary protection or political asylum). Appellants should state the reasons for their re-quest and provide documentary proof if possible.
  • Language, signature, enclosures
    The appeal must be written in one of the official languages of Switzerland (German, French or Italian) and signed either by the appellant or a legal representative. The appeal must be submitted in duplicate and include any available documentary proof. A copy of the FOM decision should also be enclosed.