A v State Secretariat for Migration (Staatssekretariat für Migration – SEM)
CH: FAC clarified that SEM must carefully perform the triage provided by law to guarantee a fair accelerated procedure
The case concerned the newly introduced accelerated procedure by the revision of the Asylum Act, entered into force on 1 March 2019 and SEM assessment of a case under this procedure.
The applicant lodged his application on 11 September 2019, a legal representative was assigned on 16 September and SEM interviewed A. on 24 and 28 November on reasons for applying. On 5 December his representative received a draft SEM decision to reject A.’s application and provided his comments on 6 December, claiming that due to the complexity of the case it should not be treated under the accelerated procedure. On 9 December SEM rejected the asylum application and ordered the immediate removal of the applicant from Swiss territory.
The legal representative filed an appeal before the FAC on 18 December and argued that the assessement of the applicant’s case should not have taken place under the accelerated procedure. The legal representative stated that SEM carried out 2 hearings of 6 hours each due to the complexity of the case and rendered a decision after 89 days instead of 29 days in accelerated procedure as prescribed by the Asylum Act.
The FAC held that the SEM evaluation of the case infringed the right to an effective appeal in accordance with art. 29a of the Swiss Federal Constitution and art. 13 of the ECHR because, if a decision is made incorrectly by the determining authority not to opt for an extended procedure, but for an accelerated one, despite the complexity of the case, then the appeal time limit is shorter (7 days) than for a standard procedure (30 days).
Accelerated procedures; Assessment of Application; Asylum Procedures/Special Procedures; Effective remedy;
Federal Administrative Court website
Switzerland, Federal Administrative Court [Bundesverwaltungsgericht - Tribunal administratif fédéral - FAC], A v State Secretariat for Migration (Staatssekretariat für Migration – SEM), E-6713/2019, E-6713/2019, 09 June 2020. Link redirects to the English summary in the EASO Case Law Database.