The case concerned the applicant A. who together with his spouse B. and his daughter C. applied for asylum. The  legal representative submitted medical reports that showed that the applicant suffered from dementia in the form of Alzheimer disease. On 9 May 2023 the applicant was personally heard before the SEM, and it was noted that he was confused and disorientated and a hearing was waived. The SEM rejected the asylum request on issues related to the conduct of the evidence proceedings, found that the applicant did not fulfil the eligibility criteria for being granted asylum and ordered the removal. However, it granted provisional admission. The same type of decision was adopted with regard to B and C.

The applicant contested the decision and SEM argued in the appeal that the applicant did not fulfil the requirements under Article 3 of the Asylum Act, that he failed to determine the facts during the hearing and that he does not fall under the category of cases where the asylum authorities are allowed to determine the facts in a different way, thus the collection of substitute statements from relatives in a written procedure was not possible, and the interrogation of relatives was considered unsuitable for establishing the facts.

The applicant countered with arguments related to the principle of investigation and the right of the applicant to be heard, however due to his illness, the applicant was not in a position to be heard and answer the questions asked. The applicant underlined that the statements of his wife and daughter could be useful and the later agreed to the extension of their files. The Federal Administrative Court detailed on the definition of dementia in Alzheimer’s disease as being a chronic or progressive brain disease which affects memory, thinking, orientation, perception, language and judgement. In view of the applicant's diagnosis, and in the absence of further clarification with regard to the state of health, the FAC considered that SEM was incapable of judgement in relation to the conduct of a hearing on the grounds for asylum, especially since the question of the applicant’s ability to judge the facts in a comprehensive way affects the finding of the facts. The FAC used the civil law to state that submitting an asylum application constitutes a relative personal right and this right is accessible also through representation, thus a legal entity can act for persons who lack the ability to act rationally as a result of mental illness. In such a situation, the FAC stated that SEM has not sufficiently established the facts of the case and in relation to the conditions and modalities for the implementation of the asylum procedure.

The FAC considered that the case shall be sent back for determination of the applicant’s ability to act in the asylum procedure, the need for clarifications to determine the asylum claim after the establishment of representation and assistance with a concrete mandate from an adviser. The contested decision was annulled.