The Federal Administrative Court of Switzerland (FAC) has approved the right of asylum seekers to challenge the incorrect application of responsibility criteria under the Dublin Regulation. This marks a departure from from its previous case law and an alignment with recent jurisprudence of the Court of Justice of the European Union (CJEU).

In a landmark ruling released on 12 January 2018, the FAC approved the appeal of an Iraqi family whose asylum application in Switzerland had been dismissed on the grounds that they had previously filed an application for asylum in Germany. The State Secretariat for Migration (SEM) had concluded that Germany was the State responsible for processing the application after receiving confirmation of acceptance from the German authorities. The family had lodged a complaint against this decision on the grounds that SEM had missed the three-month deadline for submitting a take-charge request to the German authorities making the SEM  responsible for the examination of the family’s asylum requests.

The basis for this decision lay in the controversial question of the admissibility of appeals regarding the incorrect application of responsibility criteria in the Dublin III Regulation. Previously, the FAC had dismissed complaints that were technical in nature on the grounds that they did not affect the individual legal positions of asylum seekers. However, in its judgments in Ghezelbash and Karim, the CJEU concluded that the right to an effective remedy under Article 27(1) of the Dublin III Regulation covers an asylum seeker’s right to appeal against a transfer decision by pleading the incorrect application of one of the technical criteria for determining responsibility.

The Swiss judges stated in their judgment that Switzerland is not, in principle, bound by the jurisprudence of the CJEU concerning the Dublin III Regulation. However, they added that all signatories to the Regulation are obliged to strive towards the uniform application and interpretation of the legislation. To this end, under established case-law, departures from CJEU practice may only be made if there are strong grounds for doing so. In this case, the FAC concluded that no such grounds existed.



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* A longer version of this article was first published at AIDA

This article appeared in the ECRE Weekly Bulletin . You can subscribe to the Weekly Bulletin here.