Lawful Residence of Refugees with Subsequent Grounds for Asylum

Facts

[A.] and [B.], Ethiopian nationals, entered Switzerland in 1995 and filed an asylum application. Their first asylum application was rejected in 1996. They were convicted in 2004 and 2005 for unlawful stay in Switzerland following renewed criminal complaints. During the ongoing criminal proceedings, [A.] and [B.] filed a second asylum application in 2006, which was granted in 2007, as the State Secretariat for Migration recognized subjective post-flight reasons. The Public Prosecutor's Office appealed against the acquittal of the lower instance.

Considerations

The Federal Supreme Court held that the residence of persons who are granted refugee status in a second asylum procedure due to subjective post-flight reasons is retroactively considered lawful. This results from an analogous application of Art. 31 para. 1 of the Refugee Convention, according to which the illegal entry and unlawful stay of a refugee are justified if the refugee can present compelling reasons for their entry.

In the present case, it must be assumed that the residence of…