In accordance with Article 8 of the European Convention on Human Rights, the right to family life needs to be taken into consideration in the Dublin procedure even if a family member in Switzerland does not have a secure right of residence. This is what the Federal Administrative Court has decided in a landmark judgment(1).
In the case of a Syrian woman, the Swiss authorities initially made a final ruling in a Dublin procedure(2) that the responsibility for examining the woman’s asylum application fell to Croatia rather than Switzerland. At the time, the applicant claimed that she was planning to marry a Syrian man who had been granted temporary admission to Switzerland, where he had been living for several years. However, she had not been in a relationship with this man prior to her arrival in this country, which meant that the family provisions of the Dublin procedure were not applicable in her case. The applicant was transferred to Croatia and the couple stayed in contact. She later returned to Switzerland heavily pregnant and has since been living with her partner and their child. In several subsequent applications, including this one, she has refused to accept another transfer to Croatia based on the argument that the couple have since got married in Switzerland and have a second child, so that at least now, they should be entitled to due protection as a family. The applicant claims that the asylum application must therefore be examined in Switzerland, otherwise this would constitute an infringement of the right to family life in accordance with Article 8 of the European Convention on Human Rights (ECHR).
Differentiated interpretation of Article 8 ECHR
The State Secretariat for Migration (SEM) takes the view that a genuine family relationship has now been established in this case. However, it states that the appellant cannot invoke Article 8 ECHR a priori, as her husband has only been temporarily admitted to Switzerland and does not have a secure right of residence.
The judgment by the Federal Administrative Court (FAC) does not coincide with this view. Instead, the FAC’s interpretation of Article 8 EMRC is based on the established legal practice of the European Court of Human Rights.
The FAC states that a family can, in principle, request that its rights be considered in light of Article 8 ECHR regardless of the residence status of the family member living in Switzerland. However, the court makes it clear that Article 8 ECHR does not guarantee an absolute entitlement to common residence in Switzerland. It only obligates Switzerland to carry out the asylum procedure if, when the various interests are weighed up, the interests of the family in continuing to live together as a family unit in Switzerland are given a higher weighting than the public interest in the enforcement of a legally binding transfer decision.
Weighing up the interests in this particular case
In this particular instance, the balancing of interests resulted in an unfavourable outcome for the family. The judges’ opinion was that, amongst other things, the fact that the relationship only began after the appellant had entered Switzerland and the responsibility of Croatia for her asylum application had been determined, was decisive. The appellant subsequently ignored an existing entry ban. In getting married in Switzerland in the meantime and having another child, the couple acted in the knowledge that their situation was uncertain. Although the court considers that separating the family for the duration of the asylum procedure in Croatia is drastic, the family is allowed to maintain contact during this time. Taking the children’s well-being and the duration of the procedure into consideration has not made a difference to the outcome. Switzerland is therefore not obliged to examine the asylum application.
The discretionary power of the lower court
Nevertheless, the FAC is referring the case back to the SEM. According to the Dublin procedure, the SEM has the discretionary power to examine an asylum application in Switzerland on humanitarian grounds. A discretionary review of this kind always has to be carried out. In this case, this was not done in full despite being requested by the court.
This judgment is final and may not be appealed to the Federal Supreme Court.
This judgment was coordinated by all judges from divisions IV, V and VI. The legal assessment goes beyond the present case and applies generally to a large number of cases.
Cf. judgment E-2027/2016 of 27 May 2016 by the Federal Administrative Court