A, Syrian national, entered in Switzerland requested asylum on 7 December 2015 and claimed during the interview that she married religiously B, Syrian national, who was provisionally admitted in Switzerland where he had lived several years. Her request was rejected based on the fact that a religious marriage did not constitute a marriage in Switzerland and a transfer order to Croatia was issued under Dublin III Regulation. The fact that she had not been in a relationship with her partner prior to her arrival in Switzerland meant that the family provisions of the Dublin procedure were not applicable in her case. A 3 years entry ban to Switzerland was issued and confirmed by the Federal Administrative Court but limited to 22 September 2018. She reapplied for asylum on 26 September 2016 and the transfer to Croatia took place on 12 October 2016. The couple stayed in contact while she was in Croatia. On 14 December 2016, A. requested family reunification under Dublin III Regulation and to be included in the provisional admission of her partner. By decision of 22 May 2017, SEM held that the formal requirements for her to be included in his provisional admission were not met due to lack of civil marriage but did not answer the issue of family reunification.

A re-entered Switzerland on 6 May 2017, gave birth to a daughter and lives with her partner since then. She made several subsequent applications and opposed to the Dublin transfer to Croatia invoking that they married in Switzerland and had a second child, facts that would entitle them to protection as a family. In addition, the applicant claimed that her asylum application should be examined by Switzerland, otherwise this would constitute an infringement of the right to family life as enshrined in art. 8 ECHR.

SEM considers that although the couple and their children established a genuine family relationship, the applicant cannot invoke art. 8 ECHR since her husband was only temporarily admitted and did not have a secure residence right.

The Federal Administrative Court based its reasoning on the case law of the ECtHR and stated that a family can request protection under art. 8 ECHR regardless of the form of protection and residence status of the family member living in Switzerland. The Federal Administrative Court ruled that art. 8 does not guarantee an entitlement to residence in Switzerland and it only requires the latter to balance the interests at stake, mainly to examine the asylum application if the interests of the family in continuing to live together in Switzerland are assessed with higher weight than the general interest to enforce a legally binding transfer decision.

In this landmark decision, the Federal Administrative Court ruled that the family relationship started only after A had entered Switzerland by ignoring the ban and when the responsibility of Croatia for her asylum application has been determined. The Federal Administrative Court stated that by getting married and by having another child, the couple acted with full conscience of their uncertain situation. Although the separation of the family for the duration of the asylum procedure in Croatia is considered difficult, however the court noted that family contact can be maintained and due consideration was given to the well being of the children. The court concluded that Switzerland has no obligation to examine the asylum application.

The court further decided to refer the case back to SEM because according to the Dublin procedure, SEM can exercise the discretionary power to examine an asylum application in Switzerland on humanitarian grounds. The court considered that a proper assessment on the discretionary review should be carried out by SEM.