Asylum law in Switzerland

Anyone applying for asylum in Switzerland is automatically directed to one of the FACs, where he or she will be taken into care for a period of 140 days, after which he or she will be allocated to a canton responsible for providing accommodation and subsistence until a decision is reached on the asylum application.

The federal centers are divided into regions or cantons, with one FAC handling procedural tasks, while others deal mainly with accommodation. The Les Verrières center is reserved for difficult cases.[7]

Once an asylum application has been submitted, the SEM records the applicant's personal and biometric data, including fingerprints. These are compared with a European database to determine whether proceedings are already underway in another country. The authorities may also carry out investigations into identity and travel documents, as well as into the applicant's health status.[9]

A first consultation takes place to inform the applicant of his or her rights and obligations during the asylum procedure, along with interviews with legal assistants and SEM authorities. The authorities then decide whether to apply the Dublin procedure (i.e., the application must be processed in the state through which the person arrived in Europe), the Swiss "accelerated procedure" or the extended procedure.[10] In the case of the accelerated procedure, which must be completed in 140 days maximum, the SEM interviews the applicant and examines the evidence to determine whether asylum can be granted.[9] If further clarification is required after the hearing to reach a decision, the extended procedure applies: the applicant is then assigned to a canton, which will house him or her for the duration of this procedure, which may last up to one year.[11]

The refugee status[12] (B permit) is granted to "persons who in their native country or in their country of last residence are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages for reasons of race, religion, nationality, membership of a particular social group or due to their political opinions".[13] The State Secretariat for Migration (SEM) takes gender into account when examining asylum applications, as women and sexual minorities are persecuted as a social group.[14]

In the Swiss case, the danger to life, physical integrity or freedom, as well as measures resulting in unbearable psychological pressure, are considered sufficient reasons to apply for refugee status. Specific reasons for women's flight must also be taken into account. However, refusal to serve or desertion from the army are not accepted reasons.[15] The refugee status does not apply for behaviors the person may have engaged in after leaving his or her country of origin or departure, if these acts do not constitute the expression of convictions or orientations already held before departure, nor are they a continuation of them.

The refugee status is granted on a case-by-case, individual basis. The applicant must prove that he or she is personally targeted by persecution seriously endangering his or her life, physical integrity or freedom.[16] Thus, civilians fleeing a conflict situation do not in principle have refugee status if they are not personally threatened due to their membership of a group or their political opinions. They may, however, be granted provisional admission and authorized to stay in Switzerland for as long as the conflict lasts. Following a proposal by the Federal Council,[17] Switzerland grants Ukrainians fleeing the Russian-Ukrainian war of 2022 protection status S, which has never been activated until now.[18]

As an exception to the general system of personal refugee status, the Confederation may grant asylum to general groups of applicants. The decision is taken by the Federal Council when a large number of people are concerned, and by the Federal Department of Justice and Police in other cases.[19] In view of the Taliban's return to power in August 2021, the FDJP is granting asylum to a contingent of 218 Afghan nationals.[20]

Refugees recognized as such are granted a residence permit and are authorized to engage in paid employment. Refugee status is also automatically granted to the spouse and minor children of the persecuted person, as well as to children born in Switzerland.[21]

If the conditions for recognition of the refugee status are not met, but return to the country of origin would expose the applicant to serious general danger, usually because the applicant's region of origin is in the grip of conflict, the SEM rejects the asylum application but grants provisional protection (F permit).[22] Provisional protection is automatically renewed every 12 months, but can be lifted at any time by the Confederation when the reasons for granting it have ended, generally when peace is restored in the applicant's region of origin.[23] Organizations such as Swiss Refugee Council criticize this procedure as leading to long-term precariousness, the restriction of fundamental rights (notably the right of movement) and increasing integration challenges for the people concerned.[24]

Asylum seekers who are unable to prove their status as asylum seekers, and who do not come from a country in the grip of war or generalized violence, have their applications rejected and are sent back to their country of origin (known as "rejected" asylum seekers). The decision is accompanied by a departure deadline, after which residence in Switzerland becomes illegal.

If the asylum seeker does not meet the conditions listed under article 31a of the Asylum Act, the SEM will not consider his or her application. In most cases, these are applicants who have already applied for asylum in another European Union or European Economic Area state (and are therefore subject to the Dublin agreements), or who are not considered to be seeking protection "due to persecution".[25]

The withdrawal of the refugee status necessarily entails loss of asylum, although the opposite is not always true. Loss of refugee status means that the person can no longer avail him/herself of the Convention relating to the Status of Refugees, and loses the right to a travel document, for example. The travel document must be returned to the SEM after the decision to revoke refugee status has been taken. However, the withdrawal of the refugee status - or asylum - has no effect on a cantonal residence or settlement permit if one has already been issued. However, if the refugee has only been admitted on a provisional basis, admission may be withdrawn once the refugee status has been withdrawn and removal from Switzerland enforced. These decisions do not extend to the refugee's spouse or children, and asylum will only be withdrawn from them if they personally meet the conditions for withdrawal of the refugee status.[28]

For applications to extend refugee permits obtained through family reunification, the Foreign Nationals and Integration Ac (FNIA) of 2005,[3] the Asylum Act (AsylA)[2] and the Ordinance of October 24, 2007 on Admission, Residence and Gainful Employment (VZAE) apply.[34]

Under articles 43 and 44 of the Immigration Act, the foreign spouse of a residence permit holder and his or her unmarried foreign children under the age of 18 may obtain a residence permit and its extension through family reunification. It is only possible to apply for an extension if all the following conditions are met:

• They live in the same household as the permit holder who has applied for family reunification;
• They have suitable accommodation
• They are not dependent on social assistance;
• They are able to communicate in the national language spoken in their place of residence;
• The person applying for family reunification is not in receipt of annual supplementary benefits under the Supplementary Benefits Act,[35] nor could he or she receive such benefits as a result of family reunification.

Family reunification is also possible for the spouse and unmarried children under 18 of provisionally admitted persons. Provisionally admitted refugees may also benefit from family reunification and the same status, at the earliest three years after provisional admission has been granted, provided they meet the relevant conditions.[36]

Once the family has been dissolved, the conditions for extending the various types of residence permits granted to refugees need to be analyzed. Divorce does not necessarily imply a return to the country of origin for a person who has joined a spouse through family reunification.[37]

Everyone has the right to file for divorce unilaterally, provided they meet the conditions attached to the application, or by mutual consent of the spouses.[38] However, divorce has a number of legal consequences for spouses and children, as well as for the residence permit of foreigners in Switzerland.[39]

In the case of a residence permit obtained as a result of family reunification applied for by an asylum seeker, the holder of this permit may remain in Switzerland only under certain conditions following divorce or the dissolution of the family. If these conditions are not met, the person concerned risks having his or her residence permit refused by the competent authorities. These conditions also apply in the event of the death of the spouse from whom the person's permit derives.[40] These conditions apply by analogy to the dissolution of a registered partnership.[40]

If a family or marriage breaks up, the person concerned may apply to extend the refugee residence permit obtained through family reunification, subject to certain conditions which are set out in article 44 FNIA[41] in conjunction with article 77 VZAE,[42] which sets out the same conditions for extension as article 50 FNIA.

These articles stipulate that the residence permit granted to a spouse and children through family reunification under art. 44 FNIA may be extended after dissolution of the marriage or family if the conjugal union has lasted at least three years with a common household, or if continued residence in Switzerland is required for major personal reasons.

In the case of children, this is possible if the children have lived in the same household as the parent applying for family reunification. Major personal reasons are given when a spouse is a victim of conjugal violence, the marriage was entered into in violation of the free will of one of the spouses, or social reintegration in the country of origin seems seriously compromised.[43] In order to prove domestic violence, if it is invoked as a serious motive, the following documents, in particular, must be provided as evidence for the application:

a. medical certificates;

b. police reports;

c. criminal complaints;

d. measures pursuant to art. 28b of the Swiss Civil Code, or related criminal judgments.

In addition to one of the two above-mentioned conditions, article 77 al. 4 VZAE also requires the person to be integrated.[44] This article stipulates that the person applying to extend their residence permit must prove that they are well integrated in Switzerland.

The integration criteria taken into account when examining applications include the following:[45]

• An impeccable reputation, including respect for public safety and order, and respect for the values of the Constitution.
• Good oral language skills.[46] In other words, a good understanding of the language spoken in the place of residence, equivalent to at least level A1 of the reference framework.
• Willingness to work or undergo training.