The applicant, a woman who claimed to be a Chinese national of Tibetan origin, applied for international protection in Switzerland on 12 July 2018. Her husband had previously been granted refugee status and later received a permanent residency permit. The State Secretariat for Migration (SEM) conducted a LINGUA origin analysis, which concluded that the applicant was unlikely to have been socialised in the Tibetan region as she claimed, the analysis suggesting long-term residence elsewhere.

Despite repeated requests, the applicant failed to provide identity documents or verifiable biographical information, stating that Chinese authorities had confiscated her papers when her husband fled Tibet.  On 11 March 2019, SEM rejected both her original and derivative refugee claims, citing a serious breach of her duty to cooperate and the inability to verify her origin. The decision became final and unchallenged. Subsequently, the applicant received a residence permit in 2020 and enjoyed a ‘settlement permit’ since 2025.

On 16 November 2020, she reapplied for derived  refugee status, seeking inclusion in her husband’s refugee status, under Article 51(1) of the Asylum Act, which generally grants protection to the spouses and minor children of recognised refugees. SEM again requested her to disclose her identity, to which the applicant responded that she had lived as a nomad in Tibet, and due to the fact that she had never attended school, and never worked outside her household, she lacked any identity documents. SEM again rejected her request on 29 December 2020, citing unresolved doubts about her identity and nationality.

The applicant appealed to the Federal Administrative Court on 29 January 2021. She claimed that she was Tibetan and that the LINGUA department’s evaluation was flawed. She referenced a counter-analysis of a LINGUA report by Tibetology experts which questioned the reliability of such origin assessments. She also argued that her family could only live together in Switzerland and that requiring her to obtain documents from Chinese authorities was unreasonable.

The Federal Administrative Court recalled that derived  refugee status may be denied in “special circumstances”, in the following cases: if the person recognised as refugee in Switzerland acquired the status based on a derived right to such status, if the marital union ceased to exist or has been abandoned for a long period of time, or in cases where the applicant’s nationality is different from the nationality of the recognised refugee, creating uncertainty as to whether the family can settle in the country of origin of the non-persecuted person . The court noted that determinations on special circumstances must be interpreted restrictively, with the burden of proof for demonstrating the existence of such circumstances lying with asylum authorities, while the applicant has a duty to cooperate The court cited a precedent (BVGE 2020 VI/6), which added ‘special circumstances’ which preclude the granting of derived refugee status, specifically when the SEM is prevented from verifying whether the person requesting inclusion in refugee status holds a different nationality than that of their family member. Such can be the case when the applicant seriously violated the duty to cooperate during the proceedings either for asylum status or for a derived right. The court further highlighted that while SEM can consider facts and evidence (or the failure to cooperate) based on the first asylum procedure, it must give the person another opportunity to submit evidence or to change their original statement in the second procedure concerning the derived right to asylum or family reunification.   

The FAC found that the applicant had seriously breached her duty to cooperate by failing to clarify her identity or provide credible evidence, despite being given multiple opportunities to clarify her identity. According to the court findings, the SEM has conducted a new investigation on the breach of the applicant’s duty to cooperate and the existence of special circumstances preventing the granting of a derived right. The court noted that the LINGUA report, prepared by an expert other than the one criticised in her counter-analysis, retained high evidentiary value. The court considered the fact that the SEM assumed the applicant’s Chinese nationality cannot be used to determine her primary socialization in China, since a person of Tibetan ethnicity can posses a residence permit or a tolerated status in a third country or held a different nationality.

The court further noted that the applicant’s husband’s refugee status did not automatically entitle the applicant to derived right to protection, especially given her failure to clarify her origin. It rejected the argument that the applicant’s Chinese nationality implied Tibetan origin or precluded safe return. It held that the inability to verify whether the family could safely reunite in a third country was due to the applicant’s own conduct and accepting her claim would unfairly advantage her over applicants who complied with procedural obligations.

In conclusion, the Federal Administrative Court dismissed the appeal, confirming the SEM’s decision to deny derived refugee status. It found that the applicant’s continued failure to clarify her identity and origin constituted a “special circumstance” under Article 51(1) of the Asylum Act.