Facts

The case concerns an Afghan national, A., who filed an asylum application in Switzerland on 22 December 2015. Previously, he had already filed an asylum application in Bulgaria on 10 December 2015, but he did not wait for the outcome of the procedure and entered Switzerland. The State Secretariat for Migration (SEM) ordered his administrative detention for a maximum period of six weeks, pending his removal to Bulgaria. The Federal Administrative Court dismissed A.'s appeal against this decision. A. then filed a public law appeal with the Federal Court, requesting the annulment of the Federal Administrative Court's decision and his release.

The key facts are as follows

  • A. filed an asylum application in Bulgaria on 10 December 2015.
  • He entered Switzerland and filed a new asylum application on 22 December 2015.
  • The SEM ordered his administrative detention for a maximum period of six weeks.
  • The Federal Administrative Court dismissed A.'s appeal against this decision.
  • A. filed a public law appeal with the Federal Court.

Considerations

The Federal Court examined the admissibility of the public law appeal against the decision on administrative detention. It considered that the administrative detention ordered in the context of the Dublin procedure does not constitute a decision in asylum matters within the meaning of Article 83, letter d, ch. 1, FSCA, and that the public law appeal is therefore admissible.

The Federal Court then examined the legality of the administrative detention. It considered that the decision on administrative detention must be motivated and that the motivation must be sufficient to enable the person concerned to defend themselves. It also considered that administrative detention can only be ordered if the legal conditions are met, in particular if the person concerned represents a risk of flight or if they have already been the subject of a removal decision.

The Federal Court also examined the issue of…