Switzerland: Federal Administrative Court recognizes the right to invoke Article 8 ECHR in international protection proceedings

Monday, January 25, 2021

On 25 January 2021, the Swiss Federal Administrative Court ruled in the case of a Syrian woman who had claimed a right to stay on the basis of Article 8 ECHR.

In December 2015, the applicant entered Switzerland and applied for international protection. Shortly afterwards, she religiously married D., a Syrian national, who was temporarily admitted to Switzerland and with whom the applicant had not been in a relationship prior to her arrival. Her religious marriage was not considered sufficient to fall under the family provisions of the Dublin Regulation (Regulation 604/2013) and it was determined that Croatia was responsible for her application. Additionally, the Swiss courts assessed that a transfer would not interfere with the right to respect for family life under Article 8 ECHR and that an entry-ban was justified. Finally, after an unsuccessful application for family reunification and her transfer to Croatia, she returned to Switzerland to give birth to a daughter. Her subsequent requests for reconsideration were denied. In the case at hand, the applicant claimed that if her application for international protection was not examined in Switzerland, that would constitute an infringement of the right to family life under Article 8 ECHR.

The Federal Administrative Court stated 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. Nonetheless, the Court emphasised that such request can only obligate Switzerland to weigh up the interests of the family in continuing to live together as a family unit in Switzerland, on the one hand, with the public interest in the enforcement of a legally binding transfer decision, on the other hand. Therefore, Article 8 ECHR does not guarantee a right of residence to the family. In the case at hand, the Court judged that Switzerland was not obliged to examine the application for international protection, given that, inter alia, the applicant ignored an entry-ban, and that the family is allowed to maintain contact during the asylum procedure in Croatia.

Finally, the Court sent the case back to the lower court and left it for that court to decide whether or not to use its discretionary powers on humanitarian grounds, given that the lower court had failed to consider this option in the past.

Based on an unofficial translation by the EWLU team.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Dublin Transfer
Family member
Family unity (right to)