Switzerland – TAF rules in a case concerning the assessment of the possibility to apply the humanitarian clause in a Dublin transfer

Monday, November 5, 2018

On 5 November the Federal Administrative Tribunal (TAF) of Switzerland ruled in a case concerning the humanitarian needs of an applicant who received a decision to be transferred back to Bulgaria.

The case concerned an Iraqi national of Kurdish ethnicity who applied for asylum in Switzerland but a decision was made to transfer him to Bulgaria under the Dublin Regulation. The applicant contested the decision stating that he had been a victim of ill-treatment by the Bulgarian authorities, being forced to remain under detention in deplorable conditions. The authorities, however, dismissed the applicant’s arguments, stating that there were no systemic deficiencies in the Bulgarian asylum system and the applicant did not risk being detained, as he was being transferred as an asylum seeker.

The applicant brought the case before the TAF, which granted him provisional measures suspending the execution of the transfer order. In the course of the proceedings, the applicant also submitted a medical report confirming the existence of PTSD and stating that a possible transfer to Bulgaria would increase his risk of suicide. In relation to this document, the authorities argued that the medical condition of the applicant does not amount to a violation of Article 3 ECHR.

The Tribunal, however, considered the question of whether the conditions in Bulgaria may amount to systemic deficiencies to be irrelevant. Instead, it focused upon the discretionary clause of Article 17 of the Dublin Regulation, to find that the first instance authorities failed to provide sufficient reasoning with regard to the non-application of Article 17, in light of the applicant’s individual circumstances. According to the judges, the obligation of the authorities to reason a decision should allow the recipient of that decision to be able to understand and contest it.

More notably, this obligation is even stricter when the decision is a result of the discretionary power of the authorities, when it appeals to indeterminate legal concepts, or when it relates to human rights. In this case, the authorities only examined the situation in terms of the lawfulness of the transfer, rather than assessing the medical consequences thereof. Therefore, they failed to properly assess the health risks that the medical reports had confirmed and did not provide any reasons to dismiss the applicant’s claim that his condition was problematic from a humanitarian point of view.

The decision was annulled and the authorities were invited to assume competence to examine the asylum application of the appellant.     
Based on an unofficial translation by the ELENA Weekly Legal Update.

This item was reproduced with the permission of ECRE from the weekly ELENA 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
Humanitarian considerations
Medical Reports/Medico-legal Reports
Obligation to give reasons
Vulnerable person