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Switzerland
Country of Decision : Switzerland
Court Name : CH: Federal Administrative Court [Bundesverwaltungsgericht - Tribunal administratif fédéral - FAC]
Date of decision : 25/10/2019
Type : Judgment
ECLI :
Case Number/Citation/ Document Symbol : F-1499/2018

Applicants (Turkey) vs State Secretariat for Migration (Staatssekretariat für Migration – SEM)

According to the contribution of the EASO Courts and Tribunals Network:

A Turkish citizen had applied for asylum in Switzerland on 6 January 2017; his wife did the same on 23 October 2017 for herself and on behalf of their two minor children. However, the State Secretariat for Migration (SEM) noted that she had already lodged an application for international protection in Germany on 31 August 2017 – also for herself and her two children – and that Germany had agreed to examine their asylum claim without having requested that Switzerland take charge of the aforementioned individuals within the time limits set out in the Dublin III Regulation. As the German authorities then acknowledged their responsibility for the wife and the two children as well as her husband (to preserve family unity), the SEM declined to examine the asylum claims of any member of that family and ordered their transfer to Germany. Asserting that the Swiss authorities ought to be responsible for assessing their asylum claims, the individuals concerned appealed to the Federal Administrative Court (FAC) against the SEM’s decision. According to them, Switzerland should be responsible for considering all the asylum claims in question, given that the husband’s first claim had been lodged in the country.

In its landmark judgment, [1] the FAC clarified its current case-law and also took into account the recent decisions of the Court of Justice of the European Union (CJEU). [2] Once a Dublin Member State agrees to conduct an asylum procedure and thus allows applicants who had already lodged an initial claim while on its territory to return there, the SEM is no longer required to scrutinise all the criteria for determining the responsible Member State pursuant to Chapter III of the Dublin III Regulation. Consequently, and notwithstanding the principle of family unity, this means that members of a family may potentially be separated, even if the authorities in the Member States responsible for assessing their claims cannot be held to be at fault in this respect.

In the present case, the FAC has quashed the SEM’s decision and has returned the matter back to it, with the instruction to offer the applicants two options: either the husband accepts his transfer to Germany, in which case Germany will be responsible for assessing the claims of all family members and family unity can be preserved, or he decides to remain in Switzerland, in which case the SEM will assess his case only and his wife and two children will be transferred to Germany, unless the SEM makes use of the sovereignty clause.

Dublin procedure; Family Reunification;

Dublin Regulation III (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for IP);

EASO Courts and Tribunals Network

Switzerland,CH: Federal Administrative Court [Bundesverwaltungsgericht - Tribunal administratif fédéral - FAC], Applicants (Turkey) vs State Secretariat for Migration (Staatssekretariat für Migration – SEM), 25/10/2019
CH: The Federal Administrative Court stated the importance to taking into account of CJEU case law in Dublin procedures

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=1034