Triage in connection with accelerated asylum procedures

The amendment to the Swiss Asylum Act, which entered into force on 1 March 2019, aims to make asylum procedures more efficient and faster. In addition to the Dublin Regulation (which is concerned with responsibility for procedures), the legislator defined two new types of procedures: the processing of asylum applications by means of accelerated procedures and processing by means of extended procedures. The two differ in procedural terms and especially with regard to the time limit for appeal.

Landmark judgement of the Federal Administrative Court

In a landmark judgement^[1], the Federal Administrative Court (FAC) examined the conduct of procedures and the triage undertaken by the State Secretariat for Migration (SEM). The official legal representative had claimed that this specific case involved a complex procedure, shown by the fact that the SEM carried out two hearings after the initial questioning, which each lasted 6 hours, and the fact that the asylum decision, of wider than average scope, was only made after 89 calendar days and not within the 29 calendar days envisaged by law. The official legal representation argued that the SEM should have opted for an extended procedure, stating that the right of access to an effective appeal was infringed by the incorrect triage decision and the resulting short time limit of 7 working days to file an appeal.

The court follows this assessment. It finds that, although asylum-seekers are not entitled to have their asylum application processed in one of the two types of procedures, an infringement of the right to an effective appeal within the meaning of Article 29a of the Swiss Federal Constitution and Article 13 in relation to Article 3 ECHR may arise if, despite the complexity of the matter, a decision is made, incorrectly, not to opt for an extended procedure and therefore the short time limit for appeal applies instead of the standard one. This was the case here.

Incorrect triage by the SEM

The SEM had conducted extensive fact-finding, and the justification of the ruling was also very detailed. The law does indeed stipulate that the SEM may exceed the 29-day period for procedures by “a few days” in accelerated procedures. However, this leeway was massively exceeded in the present case. The SEM's explanations regarding the failure to opt for an extended procedure did not convince the court. The legal representative had already drawn attention to the complexity of the procedure and the incorrect triage decision in the prior procedure. She also showed in a transparent manner that it was not possible to properly challenge the SEM's decision within the short time limit for appeal. The court cannot remedy the effect of this kind of incorrect triage decision, which ultimately results in the short statutory time limit for appeal applying. It thus annuls the SEM's decision and returns it for reassessment by means of an extended procedure. Furthermore, the court points out that the legislative aim of accelerating matters by means of a fair procedure in accordance with the rule of law can only be guaranteed if the lower instance (SEM) carefully performs the triage provided for by law.

This judgment is final and may not be appealed to the Federal Supreme Court.

Information on the time limits under the new law

In accelerated procedures, simple cases are to be decided on with final effect within 140 calendar days and implemented in the event of rejection. Procedures are conducted at federal centres, with asylum seekers not being allocated to the cantons. A short time limit of 7 working days applies to the appeal. The FAC must decide on the appeal within 20 working days. In order to meet these time requirements, the prior procedure is strictly timed by law and lasts a maximum of 29 calendar days.

Extended procedures deal with cases which cannot be processed within the short time limit due to their complexity. The asylum seekers are allocated to a canton. Both the time limit for the appeal and the FAC processing deadline are 30 calendar days each. Triage is conducted by the SEM after the interview on the grounds for asylum.

[1] This judgment was coordinated by all judges from divisions IV and V and holds not only for this case but for many other procedures as well.