Asylum Decision

If the applicant fulfills the criteria for asylum and no exceptions apply, s/he is granted refugee status. This comes along with a residence permit (Aufenthaltsbewilligung) called „B permit“. It is the ideal status which can be reached as an asylum seeker. With a B permit, the refugee has the following rights:

• Right to work (a formal notification has to be made to the cantonal authorities, but it can’t be denied);

• Right to social aid (Sozialhilfe);

• Right to choose the place of living (within one canton, change of cantons may be slightly restricted);

• Right to family reunification;

• Right to travel (they get a refugee passport replacing their own papers upon request with the cantonal authorities; traveling to the home country is not allowed though).

Even if the refugee criteria are fulfilled, it is possible that no B permit is issued, i.e. the person concerned is not granted refugee status. This may be for one of the following reasons (art. 53 and 54 AsylG):

1. The person concerned only became persecuted after having left the country of origin based on his/her subjective behavior (subjektive Nachfluchtgründe, e.g. political activity abroad, change of religion abroad, illegal exit of the country);

2. The person concerned is not “worthy” to get refugee status (Asylunwürdigkeit); this is the case if the person is considered as a threat to security, in particular if s/he committed a serious crime.

In these situations, the person concerned does not get a B permit, but s/he gets temporary protection as a refugee (see below “Temporary admission as a refugee”).

Moreover, refugee status is denied even though the refugee criteria are fulfilled if an exemption as foreseen in the Refugee Convention applies. The most relevant reason is that there are reasonable grounds for the suspicion that the applicant committed a war crime, a crime against humanity or a serious criminal act outside Switzerland (murder, rape or armed robbery). Under these circumstances, an applicant is not considered as a refugee and may only get temporary protection (F permit, see below).

If an applicant fulfills the refugee criteria but is either considered as not worthy for asylum or became persecuted only after leaving the home country (subjektive Nachfluchtgründe), s/he will get temporary protection as a refugee. Oftentimes, this is referred to as “F political” by clients. For F refugee status, the following particularities apply:

• Right to work (a formal notification has to be made to the cantonal authorities, but it can’t be denied);

• Right to social aid (Sozialhilfe);

• Right to choose the place of living (within one canton, change of cantons may be slightly restricted);

• Restricted right to family reunification (analogous to F foreigner);

• Right to travel (they get a refugee passport replacing their own papers; traveling to the home country is not allowed though).

If an applicant does not fulfill the criteria for asylum or if an exemption based on the Refugee Convention applies, it has to be assessed whether the execution of the removal decision is (I) unlawful, (II) unreasonable or (III) impossible. 

If so, the person concerned will get temporary protection in Switzerland. Temporary protection is granted for one year and is normally renewed again and again over many years.

In the following situations, temporary protection is granted:

1. Unlawful removal: Removal is considered illegal if it is against international law. In practice, this is the case for applicants who fulfill the refugee criteria but an exemption applies (either criminal act in Switzerland or persecution began only after leaving the country of origin, see above). Moreover, this applies if the humanitarian non-refoulment principle comes into play, in particular in cases of torture or inhumane treatment in the country of origin (but if such persecution does not amount to refugee status).

2. Unreasonable removal: Removal is considered unreasonable if there is war, civil war, general violence or a medical emergency situation in the country of origin. In addition to the reasons mentioned in the law, also the general situation has to be considered, such as the age of the applicant, medical issues, lack of treatment, existing social network as well as economic circumstances. Moreover, unreasonableness requires that there is no internal alternative, i.e. no possibility for the applicant to live in his/her country of origin “safely” in another region.

3. Impossible removal: Removal is considered impossible if the person concerned may neither go back to the country of origin by herself/himself nor may be returned there by the authorities. This may be the case because the country is in fact not reachable (e.g. closed airports) or if a country rejects any of its own citizens. Impossibility is assumed if the return has not been possible for at least one year and it will also not be possibly for at least another year. Therefore, temporary protection for impossibility of removal is generally not granted in the normal procedure, but only later upon an additional request.

The following specificities apply to “F Foreigners”:

• Right to work (a formal notification has to be made to the cantonal authorities, but it can’t be denied);

• Right to (reduced) social aid (Sozialhilfe; in most cantons, not the full amount of social aid is paid, mostly only emergency aid (Nothilfe) or slightly more is granted);

• Restricted right to choose the place of living (within one canton and change of canton);

• Restricted right to family reunification (only 3 years after granting of F status and in case of solid financial situation);

• Generally no right to travel (special permission by SEM is required, during first 3 years this is close to impossible, afterwards it may be granted for important personal issues, such as cultural events, school excursions, etc.).

People with F permit have the possibility to ask for a B permit after 5 years of residence in Switzerland (i.e. 5 years after asking for asylum). There is no legal claim for a B permit, but it shall be granted based on the level of integration, family circumstances and potential possibil- ities to return to the country of origin (art. 84 para. 5 AsylG).

If a person committed a crime in Switzerland (sanction of 1 year detention or more) or is considered as a threat to security and order in Switzerland, no temporary protection is granted.

SEM is reviewing the F permits periodically. It is very rare that F permits are withdrawn. 

If neither refugee status nor temporary protection is granted, the applicant has to leave Switzerland. Normally, a deadline of at least 30 days is set. In hardly any case the applicant actually leaves within this time period. If he has not left within such time, s/he will be asked by the cantonal authorities to cooperate with regard to his/her removal, e.g. the issuance of a passport of the country of origin.

In case of a negative decision, the following possibilities exist:

1. Appeal to Federal Administrative Court (Bundesverwaltungsgericht)

2. Leaving Switzerland

3. Staying in Switzerland illegally, possibly asking for reconsideration or invoking hard- ship clause at a later stage

Please note that many applicants disappear shortly after a negative decision. We should try to convince them to stay here and make an appeal since this is the correct and legal way to go from this point. Any appeal has suspensive effect, meaning that any removal actions do not continue during the time in which the court considers the case.

A negative decision may be connected with an entry ban to Switzerland.

If an appeal is posed, and the Federal Administrative Court decides negative, the decision is final. If this happens, it is crucial to inform the client of the following point:

• Tell the client to stay calm. It is important, that they don’t go to another country, as this could be bad for a future hardship clause request (Härtefallgesuch).

• Tell them that it is important, to communicate and cooperate with the authorities.

• As well it is important to continue to learn German/French/Italian, as this as well would of importance for a hardship clause request.

• Furthermore, there is the possibility of a reconsideration request (Wiedererwägungsgesuch). This is possible, when there is new evidence that would justify a new asylum procedure.

• In certain situations, an international appeal might be an option.

• Check, if the person can actually be send back to another country. E.g. Eritreans can not be send back, as Eritrea only excepts people coming back voluntary. 

Generally, many people stay in Switzerland also after a negative decision. They only get emergency aid, which is different from one Canton to another. We keep standing by their side, e.g. by accompanying them to exit interviews, representing them in case of coercive measures (territorial restrictions, detention) or by evaluating possibilities for a legal stay (e.g. hardship request, reconsideration request, international appeal). 

Please use our Tool which guides you through the different steps and which also provides templates for the client communication. 

Furthermore, you can find all relevant documents and templates here on G-Drive.