The applicant is an Afghan national who applied for asylum in Switzerland on 12 August 2022 and was granted legal representation by the Relief Society of the Evangelical Reform Church with a power of attorney for representation in the procedure pursuant to Article 102(f) of the Asylum Law. The SEM held on 30 August 2022 an oral interview with the applicant under the Dublin procedure in order to discuss the alleged competence of Italy to process the application. The lawyer of the applicant was not present at the meeting. The SEM completed the asylum procedure with an order of 22 November 2022 to transfer the applicant to Italy. On 29 November 2022, the lawyer resigned his mandate.

The applicant complained before the Federal Administrative Court that there were infringements of his right to be heard because the lawyer was absent during the Dublin discussion and requested the annulment of the transfer and the suspension of its implementation until the final judgement.

The applicant complained that the legal representation assigned to him did not sufficiently prepared him for the Dublin meting and was not notified to participate in the meeting.

The Federal Administrative Court noted that the legal representation informed on 4 August 2022 that, starting with 10 August 2022, they would be reluctant ­to participate in Dublin hearings, except for cases concerning vulnerable applicants. The court noted from the file that the summons to the Dublin meeting were served on the legal representation on 25 August 2022 and the Dublin meeting was then held on 30 August 2022, then the legal representation resigned on 25 November 2022. In its view, the court considered that the applicant and his legal representation had sufficient time to present views with regards to the Dublin procedure.

The applicant claimed that he had not waived his right to be assisted by the representative during the Dublin meeting, that he was not sufficiently informed of the Dublin procedure and thus his rights were infringed.

The Federal Administrative Court reiterated the legal provisions concerning legal assistance and representation and stated that: i) the presence of the lawyer is not mandatory during the Dublin procedure, the non-participation of legal representation in the event of timely notification of the date does not inhibit the legal effect of the procedural steps;  ii) the SEM was informed by email on 4 August 2022 that the organisation providing legal representation will not take part in Dublin discussions from 10 August 2022 unless concerning vulnerable applicants, iii) the applicant was informed via his legal representative on 25 August that the Dublin discussion will be held on 30 August 2022, iv) at the beginning of the interview the applicant was informed of the absence of the legal representative and v) the minutes of the interview were sent electronically to the legal representative.

The court also noted that the allegations of the applicant for not having contact with the lawyer were not credible, and moreover the legal representative kept contact with SEM on all procedural matters, was notified of minutes, submitted required documents concerning the applicant.

Based on the abovementioned, the Federal Administrative Court rejected the appeal and stated that the SEM did not violate any procedural rules with regard to legal representation and the rights of the applicant.