The applicants, A., and her brother B., both Sudanese nationals, entered Switzerland legally on 11 May and 20 May 2023 respectively. On 1 November 2023, they jointly requested humanitarian visas, stating that in view of the outbreak of armed conflict in Sudan in April 2023, they would be in danger in case of return. On 21 November 2023, the State Secretariat for Migration (SEM) notified them that given their arrival to Switzerland in May 2023, their visa applications were invalid, and they were to seek protection through asylum procedures.
On 13 December 2023, A. and B. jointly submitted their asylum applications, citing the same reasons given in their joint applications for a humanitarian visa. A. was interviewed by the SEM in November and December 2024. She stated that she belonged to an influential and politically active family, and that two of her brothers, including B., had been actively involved in opposition activities in the past, and had been imprisoned for this reason. She stated that she had also been an activist, teaching young people about revolutionary culture and participating in demonstrations. She had visited her brothers in prison and fought for their release, which she alleged had brought her to the attention of national authorities.
On 27 March 2025, the SEM granted asylum to her brother B. but on 9 April 2025 denied her claim and ordered her removal from Switzerland. However, due to the impossibility to return her to Sudan, she was granted provisional admission on humanitarian grounds. The applicant appealed the decision to the Federal Administrative Court (henceforth FAC or the court) on 12 May 2025, claiming that she was at risk of persecution both for her own activism and as a member of a politically active family, pointing to her brother’s refugee status as confirmation of their risk profile.
The FAC indicated that it applies the law on its own accord, without being bound by the reasons stated in the appeal or by the argumentation in the contested decision. Citing its previous case-law, the court explained that the right to be heard encompasses the right of applicants to provide evidence to support their claims, to review and make observations on the administration of evidence, and to access the administrative file, which must be complete and properly paginated. This right also obliges the Administration to provide reasoning for its decisions regarding all issues relevant to the outcome of the case. Lastly, the court emphasized that the right to be heard is a formal constitutional guarantee, the violation of which leads to the annulment of the decision, regardless of the merits of the appeal.
The FAC assessed the SEM’s decision denying asylum and found several procedural defects. Firstly, the court held that the SEM failed to consider a key document submitted by the applicant, namely A. and B.’s joint asylum request of 13 December 2023 and its attached evidence. The SEM made no mention of this document and the accompanying evidence in the file, instead stating in its decision that the asylum application was only submitted on 12 November 2024. Secondly, the court found that the SEM did not properly examine the implications of the applicant’s family’s political activities or consult her brother’s file. Given that the applicant’s brother had been granted asylum two weeks before the SEM’s final decision, and that their cases were based on identical grounds, it considered that this was a serious procedural defect. Thirdly, the court stated that the applicant’s right to a complete and accurate file had not been respected by the SEM, since the written asylum application of 13 December 2023 and its annexes were not included in the SEM’s electronic file. In fact, the court had discovered those documents only accidentally, while reviewing other documents and information which were in principle unrelated to the applicant’s asylum procedure, in the Central Migration Information System (SYMIC). These documents were also not provided to the applicant and her counsel, which impeded an adequate defence in the appeal proceedings.
The court found that the procedural shortcomings amounted to violations of the applicant’s right to be heard under Article 29(2) of the Federal Constitution. It therefore instructed the SEM to re-examine the case, taking into account the applicant’s brother’s asylum file and giving proper consideration to her claim of “reflex persecution.” The court noted that in her interview, the applicant had explained that the Rapid Support Forces (RSF) had invaded her hometown and targeted her former family home to search for her. The court ordered the SEM to re-examine the asylum application in light of all relevant evidence and her brother’s refugee file and stated that any new negative decision must be fully reasoned and address each argument raised in the appeal.
In conclusion, the Federal Administrative Court annulled the SEM’s decision for violation of the right to be heard and incomplete fact-finding and remitted the case to the SEM for renewed examination.