Switzerland - Federal Administrative Court, Decision of 21 December 2017, E-1998/2016

Country of Decision:
Country of Applicant:
Date of Decision:
21-12-2017
Citation:
BVG, E-1998/2016, 21 December 2017
Court Name:
Federal Administrative Court
Relevant Legislative Provisions:
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 3
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 7
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 8
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 9
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 10
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 11
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 16
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 17
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 20
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 21
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 22
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 23
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 25
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 27
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 29
National / Other Legislative Provisions:
Switzerland - Article 45 Administrative Procedure Act (Verwaltungsverfahrensgesetz - VwVG)
Switzerland - Article 31a Asylum Act (Asylgesetz - AsylG)
Switzerland - Article 106 AsylG
Switzerland - Article 107a AsylG
Switzerland - Article 5 Abs. 3 Swiss Constitution (Bundesverfassung der Schweizerischen Eidgenossenschaft - BV)
Switzerland - Article 9 BV
Switzerland - Article 29 BV
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Headnote: 

The Federal Administrative Court changed its jurisprudence concerning those competence provisions of the Dublin-III-Regulation that can be challenged with a complaint against a decision not to take charge. The Court follows the approach taken by the CJEU in Ghezelbash (C-63/15) and Mengesteab (C-670/16) and allows complaints based on missing the term to request another Member State to take charge (Article 21(1) Dublin-III-Regulation). If successful, the Member State responsible for requesting to take charge will, itself, be in charge to deal with the asylum application.

The Court also held that notifications by the Swiss Ministry for Migration (SEM) stating that the Dublin-procedure has been terminated are considered to be interim acts that can be reviewed until the closing of the complete procedure, if the acting authority provides objective grounds and acts in respect of the principle of good faith.

Facts: 

Claimant A, an Iraqi national, entered Switzerland on 26 October 2015 and applied for asylum on the same day. After being questioned by the Swiss migration authorities (SEM), he was notified by a letter dated 2 December 2015 that the Dublin-procedure has been terminated and the authorities will proceed with the domestic asylum procedure.

The wife of the claimant A (claimant B), also an Iraqi national, entered Switzerland with her two daughters on 24 November 2015 and also applied for asylum. After her questioning and a cross-check in the European fingerprint database Eurodac, it was apparent that she had travelled through Germany and had already applied for asylum there. She was notified of the possibility to be transferred to Germany due to the alleged competence of Germany according to the Dublin-III-Regulation. 

Germany accepted the request to take charge of all four asylum applications made by Switzerland on 4 February 2016. The same day, the authorities also informed claimant A of the possibility to be removed to Germany. Claimant A invoked that he had never travelled through Germany and also had not applied for asylum there.

By order made on 7 March 2016, the SEM decided to not take charge of the asylum applications and to refer them to Germany. On 31 March 2016, the claimants issued a complaint against this decision before the Federal Administrative Court (FAC) and requested the revocation of the order dated 7 March 2016 and the matter to be referred back to the SEM.

Decision & Reasoning: 

Claimant A challenged the decision of the SEM dated 7 March 2016 on two principal grounds.

First, he claimed that the letter dated 2 December 2015, by which he was informed of the termination of the Dublin-procedure and the initiation of the domestic asylum procedure, was decisive in determining Switzerland as the competent state and, thus, the decision to refer him to Germany was unlawful. The FAC assessed, in a first step, the legal nature of the letter and then considered the implications this might have had on the situation of the claimants.

Listing the possible legal qualification as either an administrative act (intended to produce legal effects), a non-binding order or a so called ‘interim act’ (Zwischenverfügung), the Court then set out the criteria applicable to the last category. In principle, such an interim act fulfils all criteria of an administrative act, however, it is accessorial to a main proceeding and, thus, only exists until the authority comes to a concluding decision. It only serves organisational purposes and intends to facilitate the final decision. An interim act can not cause legal (material) effects, but rather only binds the acting authority in the decision-making process. With regards to the situation presented in the proceedings before the FAC, the Court held that the letter dated 2 December 2015 was only intended to be the basis for a later (final) decision but should not terminate the Dublin-procedure or produce legal effects. The FAC, therefore, concluded that the letter was (only) an interim act.

The subsequent question for the FAC was to assess whether such an interim act can be reviewed/changed during an ongoing Dublin-procedure. The Court held that this is possible if two conditions apply: firstly, the authority must provide objective grounds and, secondly, it must respect the principle of good faith enshrined in Article 5(3) of the Swiss Constitution. This question is relevant in the present case, as it determines whether the SEM was allowed to ‘re-consider’ its opinion expressed in the letter dated 2 December 2015 when delivering its decision to not take charge dated 7 March 2016, thus, essentially deciding in the reverse manner. The Court held that both conditions apply in the present case. The claimant A, in particular cannot rely on the ‘protection of legitimate expectation’ (Vertrauensschutz) as he was informed on 4 February 2016 of the possibility to be moved to Germany and that Switzerland might not take charge of his application for asylum.

The Court, further, held that the letter cannot be interpreted as expressing a state’s will to make use of its discretionary power pursuant to Article 17(1) Dublin-III-Regulation. This would require that the other state had knowledge of the interim act. However, the letter was only addressed to the claimant and had not been mentioned in the request to Germany to take charge. Furthermore, an interpretation of the text of the letter leads to the conclusion, that the content was to be understood as being conditional upon a change of circumstances at the time of the final decision. The SEM was not obliged to mention the content of the letter in their decision made on 7 March 2016, as no use of the discretionary clause has been made (see above). By stating so, the FAC concretises its earlier decision dated 7 November 2012 (E-5518/2012).

Secondly, the claimant invoked that the competence provisions of the Dublin-III-Regulation had been applied incorrectly and that Switzerland should be the competent state. In particular, Switzerland has missed the term to request Germany to take charge and therefore, must be considered as being competent to deal with the claimant’s asylum application.

To determine whether such a claim is admissible, the Court recalled its jurisprudence concerning those competence provisions within the Dublin-III-Regulation that can be challenged with a complaint before the FAC. According to its prior caselaw, individuals could only claim the unlawful application of provisions that were considered to be ‘self-executing’, i.e. protecting (also) subjective rights of the asylum seeker. This was recognised for competences according to Article 3(2), 8(1)-(4), 10, 11, 16(1) and 29(2) Dublin-III-Regulation. However, the Court of Justice of the European Union (CJEU) held in its decision in Ghezelbash (C-63/15, para. 61), that all competence provisions falling under Chapter III of the Dublin-III-Regulation can be challenged (amending the decision in Abdullahi, C-394/12). The CJEU justified its opinion by arguing that the intention of the Dublin-III-Regulation was to reinforce and strengthen the protection of rights of asylum seekers and that Article 27(1) Dublin-III-Regulation, dealing with the right to an effective remedy, does not differentiate between different types of competence provisions. Nonetheless, the decision left room for interpretation as regards competence provisions outside Chapter III of the Dublin-III-Regulation. In its recent decision in Mengesteab (C-670/16), the CJEU clarified its positioning on this matter. The CJEU had to address the question whether a state becomes the competent state if it misses the term to request another state to take charge (see Article 21(1), 22(1) and (7) Dublin-III-Regulation). The CJEU answers this question in the affirmative and recalls its justifying grounds established in Ghezelbash as set out above. Based on these findings the FAC concludes that, de facto, any competence provision within the Dublin-III-Regulation can be subject to a judicial challenge. This finding, thus, is not in line with the FAC’s prior caselaw and practice.

Although Switzerland is not bound by decision of the CJEU, it is required to take into consideration the decisions of the CJEU and shall only deviate if compulsive grounds apply. The FAC, thus, concludes that it has to amend its practice to allow complaints on the ground of an unlawful application of Dublin-III competence provisions. This includes complaints on the ground that the term to request another state to take charge has been missed. In the case of claimant A, the SEM has missed the three-months-period pursuant to Article 21(1) Dublin-III-Regulation (in the case of the other claimants, the SEM has missed the two-months-period according to Article 21(2) Dublin-III-Regulation), and therefore, Switzerland has become the competent state. The order dated 7 March 2016 was thus unlawful and was revoked.

Outcome: 

The FAC revokes the order dated 7 March 2016 and obliges the SEM to examine the applications for asylum.

Observations/Comments: 

Case summary written by Chad Heimrich (LLM candidate, Queen Mary University of London).

Other sources cited: 

Article 5 of the Agreement between Switzerland and the European Community on the determination of the competent state for asylum applications (Abkommen zwischen der Schweizerischen Eidgenossenschaft einerseits und der Europäischen Gemeinschaft über die Kriterien und Verfahren zur Bestimmung des zuständigen Staates für die Prüfung eines in einem Mitgliedstaat oder in der Schweiz gestellten Asylantrags) 26. October 2004 (SR 0.142.392.68)

Agreement between Switzerland and the European Community on free movement (Abkommen zwischen der Schweizerischen Eidgenossenschaft einerseits und der Europäischen Gemeinschaft und ihren Mitgliedstaaten andererseits über die Freizügigkeit) 21 June 1999 (SR 0.142.112.681)

 

Case Law Cited: 

Switzerland - BVGE 2010/27, 29 June 2010

Switzerland - BVGE 2012/4, 9 February 2012

Switzerland - BVGer, E-5518/2012, 7 November 2012

Swizerland - BVGE 2009/43, 21 August 2009

CJEU - C-201/16, Shiri

Switzerland - BVGE 2015/19, 8 June 2015

Switzerland - BVGer, D-2677/2015, 25 August 2015

Switzerland - BGE 136 I 241, 2 June 2010

Switzerland - BGE 142 II 35, 26 November 2015

Austria: Federal Administrative Court, W185 2007074-1/7E, 6 June 2014

Switzerland - BVGer, D-4133/2015, 10 July 2017

Switzerland - BVGer, E-5900-2015, 16 June 2017

Switzerland - BVGer, D-3519/2016, 23 September 2016

Switzerland - BVGer F-2732/2017, 1 June 2017

Germany: Administrative Court Munich, M 9 K 17.50068, 3 August 2017