Asylum Procedure

Since 2019 a new asylum procedure is applicable which is faster, has shorter deadlines for appeals and free legal aid is provided by the state (“new procedure”). The following paragraph will give an overview on both procedures – the new one, which applies to everyone arriving after March 2019, and the old one, which applies to everyone who arrived before.

The asylum procedure is initiated by the asylum claim. This can be made in writing or orally. On www.asylex.ch under templates, an automated template for a written asylum claim is available. In most cases, however, asylum is requested orally. This can be done with the border control or at a reception center. You can find a list of reception centers here.

In any procedure the following applies:

• Valuable assets (> CHF 1’000.-) are confiscated (without being returned at all).

• They will have to submit all their identification documents. It is advisable to take copies or pictures thereof before!

Under the old asylum procedure, the asylum applicants had two interviews, no lawyer was assigned to them and the asylum procedure took 2-3 years. Currently, only very few people are still in the old asylum procedure. Sometimes it might still happe that we accompany a client to their interivew within the old asylum procedure. If you have such a client, please reach out to a more senior volunteer who might guide you with this. 

Under the new asylum procedure, a lawyer will be assigned to every asylum seeker by the state and free of charge (by HEKS, Caritas or RBS). Therefore, we should not intervene in these situations, but only refer to our website with general information and to the lawyer who is in charge. Note that the quality of work of the mandated lawyer varies a lot, therefore we have to deliberately consider how to respond to such requests. 

Within the first 1-2 weeks, the first interview takes place. This interview focuses on how the asylum seeker reached Switzerland.

For the first weeks (up to 140 days), asylum seekers have to stay in the reception center run by the federal government (Bundesasylzentrum). Here, the camp rules are quite strict, e.g. opening hours, no guests, little pocket money, etc.

In the first phase, the authorities (i.e. the State Secretariat for Migration, SEM) may decide that the case is inadmissible, i.e. that they will not even assess the asylum claim. This is the case if the person is a Dublin case (i.e. has to return to another European country), if s/he can return to another safe third country or if the country of origin of the asylum seeker is considered as a safe country. In these cases, an appeal has to be made within 5 business days. The assigned lawyer might possibly write such an appeal, but s/he may also put down the case. In this situation, we may jump in. Ask for a paper showing that the lawyer has decided not to follow the case anymore and ask for the entire file immediately due to short deadlines.

If no such inadmissibility decision has been taken, the SEM assesses the asylum claim either in the expedited procedure (person stays in the feredal camp) or in the extended procedure, where the person is allocated to a Canton:

• For the expedited procedure, the lawyer remains responsible, accompanied the person to the second interview and may write an appeal (or resign from the mandate - again, that's where we might jump in).

• In the expanded procedure, the allocation to a Canton is randomized, and the decision may only be challenged on grounds of violation of unity of the family (i.e. spouses as well as underage children). In specific situations, e.g. dependency based on medical needs/elderly people, it might be worth asking the SEM early on in the procedure to allocate the client to a specific Canton. However, there is hardly any chance to challenge a decision not respecting such a request. The handling in the Cantons varies from one Canton to another. Mostly, assigned asylum seekers are first placed in a cantonal camp, before being allocated to towns within a few weeks or months. The actual handling of a case has to be evaluated based on the applicable cantonal laws and regulations. The asylum seeker might be invited for further interviews, most commonly if there were contradictions between the statements in the first and second interview or if there were issues which could not be clarified in the second interview. The legal aid mandate is handed over to regional legal aid centers - so also here we can generally refer to the lawyer assigned to them, until such lawyer resigns from their mandate. 

The second interview is followed by the asylum decision:

• Admission as refugee (B permit)

• Temporary admission as a refugee (F permit)

• Temporary admission as a foreigner (F permit)

• Negative decision

In case of a negative decision, it is important to review the documents immediately (if not already provided, ask the authorities for access to the respective files, see templates on google Drive) and to start preparing an appeal (deadline: 7 working days for expedited procedure, 30 days for extended procedure). For details regarding appeals, please have a look at the appeals page.

Please note that there is another procedure applicable to people asking for asylum at a Swiss airport (i.e. Zurich and Geneva) upon arrival. There is an explanatory summary available here. You may also watch a news report which explains the specific characteristics of the airport procedure here.

For an easy overview on the asylum procedure and interview preparation, please have a look at the videos. 

If you happen to come across a client in the old procedure who has been waiting for a long time, these are the principles:

• Overall, the old procedure should take max. 2 years: max. 1 year between first and second interview, max. 1 year between second interview and decision. 

If these deadlines are disregarded, we may write a letter for the client (see templates on Drive: AsyLex → Templates → Nachfrage 2. Interview oder Asylentscheid). 

In principle, we prepare a letter for our clients and then they sign and send such letter themselves (template “ohne Mandat”). In particular cases, we may send such letter by representing them (in these cases, do not forget to attach the power of attorney, template “mit Mandat”). The reason for this approach is that we cannot represent all of our clients since representation means that all mail will come to us instead of to the client. As soon as we constitute ourselves as legal representatives, the SEM will send any correspondence to us, which will overwhelm our capacities. Therefore, whenever possible, please use the request form which is sent by the client himself/herself and not by us on his/her behalf (i.e. “ohne Mandat”).

Before you draft the letter, please ask the client relevant questions as the following ones:

___________

To: sara.123@gmail.com Cc: file@asylex.ch

Re: Re: Second interfie Hi Sarah,

Many thanks for contacting AsyLex. We would be glad to help you and we understand that the long waiting period is difficult for you. We can draft a letter for you which you can print, sign and send to SEM. For this, we need the following documents/information:

- Could you please send us a copy of your N permit? [you need this for the N number, the correct spelling of the name, the date of entry and the client’s address]

- Could you confirm that you have not been working with another lawyer before?

- Could you confirm that you have not sent another letter to SEM before?

- Did you already have your second interview? If so, when was that?

- Are you alone in Switzerland or with other family members?

- Did you already learn some German/French/Italian?

- Do you have any health issues or psychological problems?

- Do you already have a job offer or a school/studies which you could start with?

- Is there any other particular reason, why you should get the decision as soon as possible?

Once we get this information, we will draft a letter and send it to you for review, printing and sending.

Kind regards, 

Steve 

Legal Advisor AsyLex

___________

Please mention towards the client that writing such a letter has no influence on the material decision. Many clients fear that they will get a negative decision after writing a letter, which is not the case.

If a lot of time has passed (i.e. more than 2 years) we might envisage to write an appeal for delay of justice before BVGer. Before that, we should write at least two letters to SEM announcing that such an appeal is considered if no response is given within due course (last letter with registered mail if the client is financially and psychologically able to do so). A template for such a letter can be found on Drive → Templates → Nachfrage 2. Interview oder Asylentscheid → ohne Mandat → Nachfrage Asylentscheid mit Androhung RVB.