Switzerland – Federal Administrative Court, 17th May 2017, D-2925/2016

Country of Decision:
Country of Applicant:
Date of Decision:
17-05-2017
Citation:
D-2925/2016
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Switzerland - - Art. 31a (1) Asylum Act
Switzerland - - Art. 108 (4) Asylum Act
Switzerland - - Art 76a Residence Act
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Headnote: 

A waiver to file an appeal against custody prior to deportation is only possible under strict conditions. Particularly there has to be a qualified legal representation when signing the waiver.

The risk of absconding in the sense of Art. 76a Residence Act cannot be assumed because of the mere fact that another state is responsible for the asylum procedure of that person.

 

Facts: 

The complainant applied for asylum in Switzerland on the 9th of March 2016. After a hearing, the State Secretariat for Migration’s (SEM) denied his application pursuant to Art. 31a (1) b of the Asylum Act and ordered his expulsion to Belgium. Moreover, the complainant signed a waiver renouncing his right to appeal.

The SEM ordered the detention pending deportation of the complainant under Art. 76a of the Residence Act.

Subsequently the applicant filed a complaint at the Federal Administrative Court, challenging the detention and demanding instant release.

 

Decision & Reasoning: 

The complaint was successful. The court ordered the instant release of the complainant.

The court started by declaring that the waiver is void regarding the complaint at hand. There are high requirements for such a waiver renouncing procedural rights. In particular the signer has to be granted  by a qualified legal representation when signing the waiver.

The judge continued by explaining that according to Art. 109 (3) Asylum Act, the first judicial review on the detention pending deportation has to be granted immediately. Therefore, the court has to decide within 5 days after the filing of the complaint.

According to Art. 28 (4) Dublin III Regulation read in conjunction with Art. 9 (4) of the Directive 2013/33/EU of the European Parliament and of the Council of 25 June 2013 laying down standards for the reception of applicants for international protection, it is obligatory to inform the complainant in writing of the possibility to make use of free legal consultation. However, the court left the legal consequences of the missing information undetermined as the complaint is successful anyhow.

The Federal Court of Administration continued by considering the requirements of Art. 76a Residence Act, which allows the detention pending deportation within the Dublin process under certain circumstances. Among other requirements, Art. 76a (1) states that in order to detain a person, there have to be specific indications of the person’s intention to evade the transfer. The mere fact that another state is responsible for the asylum procedure under the Dublin III Regulation is not sufficient to detain a person. The danger of absconding cannot be assumed on that basis.

In the case at hand, there are indications against the risk of absconding. The complainant provided detailed information about his journey and declared he will not resist his transfer to Belgium. Furthermore, the complainant is merely challenging the detention, not the denial to grant asylum. Therefore, the court concluded that there is no risk of absconding.

The complaint was successful.

 

Outcome: 

The complaint was successful. The court ordered the instant release of the complainant.

 

Observations/Comments: 

This case summary was written by Tim Drunkenmölle.

Case Law Cited: 

Switzerland - Federal Administrative Court D-2310/2016 (19th April 2016)

Switzerland - Federal Administrative Court D-2484/2016 (27th April 2015)