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CH: FAC concludes there is no deprivation of liberty when an asylum applicant is assigned to a special reception centre due to his conduct and an effective remedy provided

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Referral to the CJEU
Relevant Legislative Provisions
European Convention on Human Rights;
Switzerland, Federal Administrative Court [Bundesverwaltungsgericht - Tribunal administratif fédéral - FAC], A v State Secretariat for Migration (Staatssekretariat für Migration – SEM), F-1389/2019, 20 April 2020. Link redirects to the English summary in the EUAA Case Law Database.
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Case history
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On 3 March 2019 the applicant submitted an asylum application and on 8 March SEM decided to assign him to a special reception centre for uncooperative applicants, in accordance with Art. 24a of the Asylum Act. He was allocated to the specific centre in Les Verrières for a period of 14 days on account of his disruptive behaviour at the federal asylum centre where he was residing. Upon his request, SEM delivered a formal decision for his allocation to the special centre on 9 March. On 20 March SEM decided on his transfer to Germany under the Dublin procedure. On 21 March submitted an appeal contesting the measure of being allocated to a special centre and alleging the measure amounted to a deprivation of liberty in the meaning of art. 5 ECHR, although the measure ended. The applicant also complained under art. 13 of the ECHR of a formal denial of justice due to SEM not issuing a formal and contestable decision on the allocation to a special centre.

FAC noted that the SEM decision of 8 March 2019 had an incidental character and could be appealed only together with the decision taken on the asylum procedure. The applicant was not deprived of an effective remedy since he filed the appeal on 21 March 2019 after SEM issued the Dublin transfer decision on 20 March 2019.

FAC stated that a deprivation of liberty in the meaning of art. 5 Art. 5 ECHR implies that the person is held against his/her will in a limited space for a minimum period of time but in the applicant’s case he had a certain degree of freedom of movement during his stay in the special centre and could leave outside under certain conditions. FAC concluded that the restriction was provided by Asylum Act, was due to his disruptive behaviour and was proportionate.

On the effective remedy, FAC ruled that it is not necessary for an applicant to have an immediate appeal guaranteed but a maximum of 30 days form the date the allocation measure was taken, time respected in his case.  

Country of Decision
Court Name
CH: Federal Administrative Court [Bundesverwaltungsgericht - Tribunal administratif fédéral - FAC]
Case Number
Date of Decision
Country of Origin
Detention/ Alternatives to Detention
Effective remedy