Extraordinary remedies

The request of reconsideration is a request to the authorities to consider a change of decision regarding an official decree (Verfügung) that has already come into force. An official decree comes into force when all appeals have already been used without success or when the dead- lines for appeals have been forfeited.

In the context of asylum law, the request is expressly stipulated in Art. 111b and 111d of the Asylum Act. The SEM is obliged to examine a request of reconsideration when an adjustment of the decree due to new substantial facts is requested. Two situations are possible:

I: Subsequent incorrect decision: If the new fact’s relevant to the decision have occurred only after the decision of the migration authority or appellate body, the decision is subsequently incorrect. In this case, the migration authority is obliged to reconsider its original decision and to take a new decision based on the new circumstances. New facts could be, for example, the increased rootedness in Switzerland associated with the school enrollment of children, the repayment of debts, the exemption from welfare dependency due to the payment of a pension or taking up gainful employment, the intensification of the relationship between the parent and child entitled to attend school, illness, arrest of a family member in the home country, change of regime in the persecuting state, and so on. 

• If such grounds for reconsideration do not "only" relate to obstacles to expulsion but to refugee status, the FOM examines the application as a new asylum application ("multiple applications", "Mehrfachgesuche", Art. 111c AsylG).

II: Originally incorrect decision: If the new facts relevant for the decision have already occurred before the decision of the migration authority has become legally binding, there is an originally incorrect decision, which the competent authority only has to re- consider if the new facts could not already be asserted in the original proceedings. This is the case, for example, if the facts of the person concerned were demonstrably not yet known. The re-evaluation of the originally incorrect decision is referred to as an appeal ("Revisions").

• In practice, requests for reconsideration and review most often fail because the circumstances asserted are not considered material. In these cases, the migration authority does not even respond to the application.

Procedural aspects

• Attention: The application must be submitted within 30 days after discovery of the reason for reconsideration in writing and with a statement of grounds (Art. 111b AsylG).

• The SEM shall charge a fee if it rejects or dismisses an application for re-examination. If a request or application is approved in part, the fee is reduced.

• The SEM shall, on request, exempt the applicant following submission of re-examina- tion from having to pay procedural costs, provided s/he is in financial need and the application does not appear prima facie without merit.

• A rejection of a reconsideration or multiple application decision may again be appealed to the Federal Administrative Court.

With regard to the legal institution of reconsideration, it should be noted that new ma- terial facts cannot be raised in the ordinary appeal procedure at every stage of the procedure. In principle, the Federal Supreme Court is bound to the determination of the facts by the lower court so that it cannot take into account any newly submitted facts. In this case, newly occurring material facts must be reconsidered and asserted at the lowermost court.