Case Law

The maintenance by a determining authority of a Member State of a practice whereby original documents can never constitute new elements or findings for the purposes of a subsequent asylum application if the authenticity of those documents cannot be established is incompatible with Article 40(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 4(2) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. There is no difference between copies of documents or documents originating from a non-objectively verifiable source submitted by an applicant in a subsequent application in so far as all documents have to be considered carefully and rigorously on an individual basis in order to ascertain whether they significantly add to the likelihood that the applicant qualifies as a beneficiary of international protection and in order to prevent a person from being expelled if he or she faces an individual and real risk of being subjected to treatment contrary to Article 19(2) of the Charter of Fundamental Rights of the European Union. 2. Article 40 of Directive 2013/32, read in conjunction with Article 4(2) of Directive 2011/95, cannot be interpreted as permitting a determining authority of a Member State, when assessing documents and assigning probative value to such documents, to distinguish between documents submitted in an initial application and those submitted in a subsequent application. A Member State, when assessing documents in a subsequent application, is obliged to cooperate with the applicant to the same extent as in the initial procedure.

11 February 2021 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Fresh / New claim - Refugee / Asylum law | Countries: Afghanistan - Netherlands

The TAF decided in a principle judgment that the right to family life should be taken into account in a Dublin procedure, even if the family member in Switzerland does not have a secure right of residence.

25 January 2021 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): Family reunification - Refugee / Asylum law - Residence permits / Residency | Countries: Switzerland - Syrian Arab Republic

This decision was about the granting of family asylum to a woman of Tibetan ethnicity. It represent a landmark judgment of the FAC acknowledging the existence of a new specific circumstance that goes against the granting of family asylum. The FAC overrules the decision of the SEM to refuse family asylum and refers the matter back to the SEM for further investigation and reassessment.

1 July 2020 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): Asylum-seekers - Family reunification - Refugee / Asylum law - Tibetan | Countries: China - Switzerland

The legal representative of the asylum seeker from Afghanistan refused to participate in the « Dublin » hearing due to Covid-19. The hearing had been conducted without any legal representative and the SEM decided on the asylum seeker’s transfer to Germany. The FAC concludes that the absence of a legal representative was due to justifiable good cause. Thus, the hearing has no effect.

4 May 2020 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): COVID-19 - Legal representation / Legal aid - Refugee / Asylum law | Countries: Afghanistan - Switzerland

The case concerned the removal from Switzerland to Afghanistan of an Afghan national of Hazara ethnicity who was a Muslim convert to Christianity. The European Court of Human Rights held, unanimously, that there would be: a violation of Article 3 of the European Convention on Human Rights in the event of the applicant’s return to Afghanistan.

5 November 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment - Refugee / Asylum law - Religious persecution (including forced conversion) | Countries: Afghanistan - Switzerland

A person with foreign nationality entered the Mexican State by air, having only 180 days that are granted to any foreign person to be in Mexico. The complainant requested the recognition of her refugee status. The Director of Protection and Return of the Mexican Commission for Refugee Assistance (COMAR) asked her the reasons why it was physically impossible for her to request refugee recognition within 30 days after entering Mexico, to which she replied that she was not aware, therefore, the request was denied. The Second Chamber, when carrying out an analysis of article 19 of the Regulation of the Law on Refugees and Complementary Protection, held that it was proven to be in the exceptional case provided for in the aforementioned paragraph and, therefore, the agreement in which the claim was denied is illegal. This is so, given the reasons provided by the applicant for which she was unable to submit her application for recognition in a timely manner, for which reason it had to be admitted for processing.

23 October 2019 | Judicial Body: Mexico: Suprema Corte de Justicia de la Nación | Topic(s): Refugee / Asylum law | Countries: Mexico

A person with foreign nationality entered the Mexican State by air, having only 180 days that are granted to any foreign person to be in Mexico. The complainant requested the recognition of her refugee status. The Director of Protection and Return of the Mexican Commission for Refugee Assistance (COMAR) requested the reasons why it was materially impossible for her to request refugee recognition within 30 days after entering Mexico, to which she replied that she was unaware, therefore, the request was denied. The Second Chamber, when conducting an analysis of Article 19 of the Regulations of the Law on Refugees and Complementary Protection, held that the agreement in which the admission of the application for recognition of refugee status presented was illegal, is illegal. This is so, given the reasons given by the applicant for which she was unable to submit her application for recognition in a timely manner, for which reason it had to be admitted for processing.

23 October 2019 | Judicial Body: Mexico: Suprema Corte de Justicia de la Nación | Topic(s): Refugee / Asylum law | Countries: Mexico

An individual entered the national territory, leaving his country of origin due to the conditions of persecution, insecurity, and human rights violations. By means of a document submitted to the Mexican Commission for Aid to Refugees, he requested recognition of his refugee status, however, it was denied. The Second Chamber considered that in accordance with an interpretation of numeral 19 of the Regulation of the Law on Refugees and Complementary Protection, the state of vulnerability in which the refugee applicants are in Mexico must be considered, therefore the accreditation to present the request outside the period established by law should not be strict or rigorous, as it would not be valid for them to be required to prove the inability they had to submit their application in time. Failure to submit the application within a specific period should not automatically lead to the rejection of the respective application, but rather consider those cases in which the submission outside the legal deadline was due to justified reasons. Therefore, it was decided to protect two applicants for recognition of refugee status, against the refusal of the authorities responsible for admitting their applications because they did not prove a cause beyond their control that prevented them from submitting said request within the legal term.

16 October 2019 | Judicial Body: Mexico: Suprema Corte de Justicia de la Nación | Topic(s): Refugee / Asylum law | Countries: Mexico

An individual entered the national territory, leaving his country of origin, due to the conditions of persecution, insecurity, and human rights violations. By means of a document submitted to the Mexican Commission for Aid to Refugees, the individual requested recognition of his refugee status, however, it was denied. The Second Chamber considered that in accordance with an interpretation of numeral 19 of the Regulation of the Law on Refugees and Complementary Protection, the state of vulnerability in which the refugee applicants are in Mexico must be considered, therefore the accreditation to present the request outside the period established by law should not be strict or rigorous, as it would not be valid for them to be required to prove the inability they had to submit their application in time. Failure to submit the application within a specific period should not automatically lead to the rejection of the respective application, but rather consider those cases in which the submission outside the legal deadline was due to justified reasons. Therefore, it was decided to protect two applicants for recognition of refugee status, against the refusal of the authorities responsible for admitting their applications because they did not prove a cause beyond their control that prevented them from submitting said request within the legal term.

16 October 2019 | Judicial Body: Mexico: Suprema Corte de Justicia de la Nación | Topic(s): Refugee / Asylum law | Countries: Mexico

Leading case concerning family reunification and safe third country: The appellant was recognized as refugee in Italy on 16 November 2009 He went to Switzerland for family reunification. The fact that a person has already been granted protection as a refugee and asylum in another Dublin State constitutes a "special circumstance" within the meaning of Art. 51 para. 1 of the Swiss Asylum Law which precludes the granting of family asylum.

25 September 2019 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): Family reunification - Refugee / Asylum law - Safe third country | Countries: Eritrea - Switzerland