Taking Charge vs taking back 

➢ The decision to take charge/take back violates a directly applicable provision of the Dublin regulation (i.e. they are sufficiently clear and precise and aim to guarantee rights of the asylum applicant and they can be effectively applied in a concrete case). Such provisions are, for instance, art. 9 and 10 of the Dublin III Regulation regarding family members benefiting from/applicants of international protection. Point 4 also concerns cases where the request to take charge/take back does not respect the deadlines set out in the Dublin Regulation: according to the decision of the Federal Administrative Tribunal E-1998/2016 of 21st December 2017, the deadlines of the Dublin III Regulation cannot be circumvented by bilateral agreements between two states, including the acceptance of another member state to take charge/take back. It is, therefore, always worth checking the whole file of an asylum seeker when we are confronted with a Dublin decision it may happen that the authorities did not comply with the deadlines.

➢ The criteria for determining responsibility were not applied correctly by SEM (see Communiqué de presse)

➢ Use of case law of the Court of Justice of the EU (CJEU): the decision of the Federal Administrative Tribunal E-1998/2016 mentioned above took into account EU Court rulings (Ghezelbash and Mengesteab). The Federal Administrative Tribunal argued that while Switzerland is not in principle bound by the case law of CJEU on the Dublin III Regulation, the signatory member states should strive to ensure a uniform application of the text of the regulation. Derogation should be possible only when there are valid reasons. What these “valid reasons” are is to be interpreted on a case-by-case basis. In its Decision E-1998/2016, the Tribunal ruled that the acceptance of a member state of the transfer of the applicants after the expiry of the deadline of the request was not a valid reason.

➢ Sending back to certain countries or sending back without certain guarantees, thus deviating from current Swiss practice in relation to certain Dublin member states (please note that these restrictions apply to Dublin cases only and not for any cases where the person already got protection in a Dublin state!):

• No sending back to Greece: This decision was taken due to the important flaws of the asylum system in Greece in order to align Swiss practice with the case-law of ECHR (M.S.S. V. Belgium and Greece) case-law of the Court of Justice of the EU (N. S. c. Secretary of State for the Home Department) and the decision of the Federal Administrative Tribunal (D-2076/2010).

• Hungary: In its Decision D-7853/2015 of 31st May 2017, the Federal Administrative Tribunal noted the responsibility of the SEM to gather all elements necessary for the assessment of the Hungarian asylum system. While SEM is examining whether there are systemic deficiencies in the Hungarian system, transfers to Hungary are suspended and only possible in exceptional cases, such as when the asylum applicant concerned has requested it, according to an announcement of a SEM spokesperson in October 2017.

• Malta: no sending back for vulnerable persons and those that risk to be placed in detention upon transfer.

• Italy: Despite flaws in the asylum system and poor reception conditions, the Swiss authorities do not consider that that the Italian system presents systemic deficiencies that would result in human rights violations of the asylum seekers concerned (such as inhuman or degrading treatment). However, in cases where families are transferred to Italy, it is required that the Swiss authorities obtain individual guarantees from the Italian authorities, prior to the transfer, that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together. Failure to do so is a violation of art. 3 of ECHR (Tarakhel v Switzerland). The BVGer has now stopped transfers of families to Italy. The recent political situation under the Salvini-government in Italy has led the BVGer to reform its Dublin-decisions.

• Bulgaria: The recent political situation has led the BVGer to check for systemic flaws.

• Croatia: The recent political situation has led the BVGer to check for systemic flaws (see reference decision E-3078/2019).

• In general: the asylum system and reception conditions in the receiving member state can be a valid reason to not transfer asylum applicants if, from evidence (such as NGO/government reports, case law etc.), there is reason to believe that in that member state there are systemic deficiencies that would expose the returning applicants to a risk of violation of their human rights.

➢ Invoking humanitarian reasons for staying in Switzerland, e.g. grave medical condition, applicant being a victim of human trafficking with high chances of being victimized again if sent back to the Dublin state responsible. Keep in mind however that in the appeal procedure, the Tribunal can only examine errors of law and not the “appropriateness of a decision”. The Tribunal has stated that whether or not there are humanitarian reasons for applying the sovereignty clause is a question of “appropriateness”, where the SEM has a margin of appreciation. As long as SEM decides within that margin, the Tribunal cannot examine whether or not the decision was appropriate (Federal Administrative Tribunal, Decision D-3794/2014, of 17th April 2015). However, SEM has to examine if humanitarian reasons exist. It also has to provide adequate justification to the applicant on the reasons why it dismisses his/her claim on the existence of humanitarian reasons in order to allow the applicant to fully understand and contest SEM’s decision (see Federal Administrative Tribunal, Decision E-504/2016, of 5th November 2018, where the Tribunal concluded that SEM’s failure to provide sufficient reasoning with regard to the non-application of Article 17 Dublin III despite the invocation of medical grounds by the applicant, supported by evidence, amounted to a violation of the right to be heard).

➢ Lack of special guarantees that are necessary in a particular case: as mentioned above, in the case of transfer of families, the Swiss authorities need to obtain individual guarantees from the Italian authorities, prior to the transfer, that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together. The need for requesting special guarantees has also been highlighted in the Federal Administrative Tribunal, Decision D-2677/2015 of 25th August 2015 regarding a case of transfer to Slovenia of a mentally ill person who needed special trauma treatment and Federal Administrative Tribunal, Decision D-6089/2014 of 10th November 2014 regarding the transfer of a traumatised man to Hungary. These two last cases were considered special cases and the guarantees were not deemed as guarantees within the meaning of the Tarakhel ruling.

Transfer in case the appeal is rejected

The cantonal authorities organize and cover the costs of the transfer. A notice of three working days is required before the execution of the transfer but the notice period might be longer in special circumstances, such as if the asylum seeker requires medical attention during and after the transfer.

The deadlines for transfers are set in art. 29 of the Dublin Regulation. In principle, it is set to six months from the acceptance of the request by another member state to take charge/to take back the person concerned in case of no appeal, or of the final decision on an appeal where there is a suspensive effect. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds. Please note that this six months period starts over again after a negative decision by the Federal Administrative Court in case it granted suspensive effect to the appeal.

Where the transfer does not take place within the six months’ time limit, the member state responsible is relieved of its obligations to take charge or to take back the person concerned and responsibility is transferred to the requesting Member State.

Sources:

https://www.sem.admin.ch/dam/data/sem/asyl/verfahren/hb/c/hb-c3-f.pdf 

https://www.sem.admin.ch/sem/en/home/asyl/asylverfahren/dublin-verfahren.html  https://www.asylumineurope.org/reports/country/switzerland/asylum-procedure