The applicant is an ethnic Tibetan who applied for international protection in 2015 but was rejected due to lack of information regarding her origins. SEM decided to remove the applicant from Switzerland and to enforce this decision, while ruling out removal to the People’s Republic of China, because of the risks of persecution. In 2019, she married in Switzerland a man who was granted refugee status and subsequently submitted a new application to be granted family asylum. The SEM rejected the request based on information already available in her first application and ruled on the breach of the duty to cooperate in her first application. The fact that SEM is prevented from verifying if the applicant has a different nationality from that of the member of her family who is already recognised as a refugee may constitute a “special circumstance”. This special circumstance impedes the granting of family asylum.

The Federal Administrative Court stated that although the SEM may consider the facts and evidence from the first concluded procedure, the asylum applicant must be provided with the opportunity to be heard in the second procedure. The assessment of the first concluded procedure cannot be automatically transposed to the second procedure. The applicant must be heard about specific requirements related to the family asylum procedure and a new assessment to be carried out. The Federal Administrative Court ruled that this process is necessary to ensure compliance with law as the first asylum procedure and the family asylum procedure are regulated under different conditions.