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A. v State Secretariat for Migration (Staatssekretariat für Migration – SEM)

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07/07/2023
CH: The Federal Administrative Court ruled with regard to an
applicant who suffered from dementia and clarified the need
to determine the ability to act in the proceedings and the
right to be appointed a representative in case of incapacity
due to mental health.

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Abstract  Country of Decision

The case concerned the applicant A. who together with his spouse B. Switzerland
and his daughter C. applied for asylum. The legal representative
submitted medical reports that showed that the applicant suffered  Court Name
from dementia in the form of Alzheimer disease. On 9 May 2023 the CH: Federal
applicant was personally heard before the SEM, and it was noted that Administrative Court
he was confused and disorientated and a hearing was waived. The [Bundesverwaltungsgericht
SEM rejected the asylum request on issues related to the conduct of - Tribunal administratif
the evidence proceedings, found that the applicant did not fulfil the fédéral - FAC]
eligibility criteria for being granted asylum and ordered the removal.
# Case Number
However, it granted provisional admission. The same type of decision
D-3593/2023
was adopted with regard to B and C.
 Date of Decision
The applicant contested the decision and SEM argued in the appeal 07/07/2023
that the applicant did not fulfil the requirements under Article 3 of
the Asylum Act, that he failed to determine the facts during the Country of Origin
hearing and that he does not fall under the category of cases where Afghanistan
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procedure wasPolicy
not . possible, and the Applicant with
interrogation of relatives was considered unsuitable for establishing
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30/04/2024, 06:54 EUAA - View Case Law
interrogation of relatives was considered unsuitable for establishing
disabilities
the facts.
Assessment of
The applicant countered with arguments related to the principle of
investigation and the right of the applicant to be heard, however due Application
to his illness, the applicant was not in a position to be heard and
Legal Aid/Legal
answer the questions asked. The applicant underlined that the
statements of his wife and daughter could be useful and the later assistance/representation
agreed to the extension of their files. The Federal Administrative
Court detailed on the definition of dementia in Alzheimer’s disease as Medical condition
being a chronic or progressive brain disease which affects memory,
Vulnerable Group
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 Source
incapable of judgement in relation to the conduct of a hearing on the Federal Administrative
grounds for asylum, especially since the question of the applicant’s Court, Judgments Data
ability to judge the facts in a comprehensive way affects the finding of base
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.

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