New evidence after a final decision

A final asylum decision is not necessarily the end of the procedure. If the facts or the legal situation change after the ordinary procedure has ended, the Asylum Act provides its own remedy in the request for reconsideration.

What is a request for reconsideration?

Since the Asylum Act revision of 1 February 2014, the request for reconsideration has been expressly regulated in Art. 111b AsylG. It is a procedural provision covering both the simple and the qualified request for reconsideration; for the substantive requirements, Art. 66–68 of the Administrative Procedure Act (VwVG, SR 172.021) remain applicable in addition.

When is a request for reconsideration worthwhile?

Typical situations from practice:

• New evidence, previously unavailable, on the original situation of persecution
• A subsequent, material deterioration of the situation in the country of origin
• New medical findings relevant to whether enforcement of the removal is reasonable
• Political activities in exile in Switzerland that arose only after the initial decision

The request for reconsideration is not suitable, however, for adding arguments that could and should already have been raised in the ordinary procedure; for these the required novelty of the submission is lacking.

Difference from revision

Reconsideration is to be distinguished from revision: whereas reconsideration triggers a fresh assessment by the SEM itself, revision is directed against a decision of the Federal Administrative Court and is examined by that court. Which route is right depends on which authority decided last.

An important limitation

For requests for reconsideration, the same statutory presumption that an officially appointed representative is necessary does not apply as for the initial appeal against a negative asylum or removal decision. Whether free legal aid is granted is examined here by the authority under the more general standard of Art. 65 VwVG, in particular whether the request does not appear to have no prospect of success. A careful preliminary assessment of the prospects of success is therefore especially important before a request is filed.

Suspensive effect and enforcement

Filing a request for reconsideration does not automatically stay the enforcement of a removal in every case. The suspension of enforcement is governed by Art. 111b para. 3 AsylG as a special provision taking precedence over the general provision of Art. 56 VwVG. Anyone in a time-critical situation should have this point clarified at the same time as the request itself.