The case concerned lump-sum subsidies paid by the Confederation to the cantons because the later are responsible to provide social and emergency assistance to persons residing in Switzerland and assigned to them. The cantons are in particular responsible for carrying out the transfers ordered by the State Secretariat for Migration (SEM) in the context of the decisions of non-entry into the matter adopted in application of the Dublin Regulation. Specifically, article 89b of the Asylum Act (LAsi) provides that if a canton does not fulfil or only partially fulfils its obligations with regard to the execution of removal, without objective reasons, the Confederation may claim the reimbursement of fixed compensation already paid. Similarly, if this breach leads to an extension of the duration of the stay of the person concerned in Switzerland, the Confederation may waive the payment of these subsidies.

The canton did not execute the transfer of a Turkish national to Bulgaria following a brief disappearance from the reception center – which, however, increased the deadline for execution to eighteen months – as well as two suicide attempts.

The SEM noted that the transfer deadlines, of six months has expired and a national procedure had to be opened as there were no objective reasons for the non-transfer of the applicant to Italy. Consequently, the SEM decided to interrupt the payment of federal subsidies beyond the regulatory deadline. The canton of Neuchâtel challenged this decision, arguing that the cantons should be given room for manoeuvre and not be required to carry out the transfers ordered by the SEM. The canton of Neuchâtel claimed before the Federal Administrative Court that the SEM violated the principle of the separation of powers, its right to be heard, and that it made an inaccurate and incomplete finding of the relevant facts. 

The FAC reiterated that the federal legislator did not intend to leave any leeway to the cantons, contrary to the situation under the ordinary law of foreigners. In such case, even supposing that the cantons would have had a certain leeway, this would not include the right to re-discuss, outside of any procedural framework, a decision or even a judgment in force.

The court noted that the person concerned had been the subject of a procedure in the context of which the decisions of the federal authority were subject to appeal and where a request for review remained possible. Under these conditions, only objective reasons could justify the non-execution of the transfer. The FAC noted that the canton of Neuchâtel had not taken any concrete measures and fourteen months had passed without even the canton undertakes measures to update the medical aspects of the file. In the absence of any objective justification for the non-execution of the transfers, the SEM thus did not violate federal law by removing the federal subsidies. The appeal submitted by the canton of Neuchâtel was dismissed.