Facts

The appellants are an Ethiopian family: the father (born 1988) and the mother (born 1987), as well as the twins born in 2018. The parents entered Switzerland illegally on 29 August 2015 and filed asylum applications the following day.

The State Secretariat for Migration (SEM) rejected the asylum applications by decisions of 24 August 2017 for lack of refugee status, ordered the family's removal from Switzerland and set a departure deadline until 19 October 2017. The Federal Administrative Court dismissed the appeals against these decisions by judgments of 27 August 2019; it did not entertain the requests for revision on 25 September 2019. A new departure deadline until 30 September 2019 had been set by letter from the SEM of 4 September 2019.

After the departure interview of 30 September 2019, the Migration Office of the Canton of St. Gallen pointed out to the family that they were residing illegally and were only entitled to emergency aid. The family refused voluntary departure and waived emergency aid. Upon a request for reconsideration of 4 October 2019, the SEM suspended enforcement of removal for the time being by letter of 8 October 2019.

The family requested from the Migration Office, by submissions of 3, 24 and 26 October 2019, an appealable decision on the withdrawal of social assistance and the assignment of accommodation. On 25 October 2019 the Migration Office stated that rejected asylum seekers were statutorily excluded from social assistance, including where enforcement of removal was suspended; they were only entitled to emergency aid in the departure and emergency aid centre in [U.] . On 2 November 2019 the family lodged a complaint of denial of justice with the Security and Justice Department, which was dismissed by decision of 24 December 2019. The Cantonal Administrative Court of St. Gallen dismissed the appeal lodged against it by decision of 27 February 2020, insofar as it was admissible.

By way of a civil law appeal in public law matters or, in the alternative, a constitutional appeal, the appellants request that the lower instances be ordered to issue a formal decision on social assistance; as a precaution, social assistance in the narrower sense be granted and legal aid be approved. The Federal Supreme Court obtained the files; no exchange of written submissions took place.

The subject matter of the dispute is whether the lower court violated federal or international law by rejecting a denial of justice by the Migration Office on the ground that no explicit decision on the withdrawal of social assistance in the narrower sense had to be issued.

Considerations

The civil law appeal in public law matters is admissible under Art. 82 lit. a FSCA, as it concerns cantonal social assistance and no exclusion ground under Art. 83 FSCA applies. There is therefore no room for a subsidiary constitutional appeal under Art. 113 FSCA. The complaint of violation of federal law (Art. 95 lit. a FSCA) is reviewable only within the framework of the qualified duty to raise complaints (Art. 106 para. 2 FSCA); the establishment of facts may only be challenged for manifest inaccuracy (arbitrariness) (Art. 105 para. 2 FSCA).

The lower court did not violate the right to be heard. The duty to give reasons under Art. 29 para. 2 Cst. only requires that the essential arguments be addressed and that an appropriate challenge be possible; this was the case here.

Under Art. 81 and 82 AsylA, persons with a final removal decision for whom a departure deadline has been set no longer receive social assistance, but only emergency aid under Art. 12 Cst. This also applies where enforcement of removal is suspended for the time being (Art. 82 para. 2 AsylA; BGE 137 I 113 E. 3.1; 135 I 119 E. 5.3). The exclusion follows directly from the federal…