Rs 142.318.1 Order Of 4 September 2013 On The Realization Of Measures Of Acceleration Test Phases In The Field Of Asylum (Order On The Test Phases, Otest)

Original Language Title: RS 142.318.1 Ordonnance du 4 septembre 2013 sur la réalisation de phases de test relatives aux mesures d’accélération dans le domaine de l’asile (Ordonnance sur les phases de test, OTest)

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142.318.1 order on the realization of test phases relating to measures of acceleration in the field of asylum (test phases, OTest Ordinance) of September 4, 2013 (State on September 29, 2015) the federal Council Swiss, view of art. 112b, al. 2, of the Act of 26 June 1998 on asylum (LAsi), stop: Chapter 1 principles art. 1 scope and field of application this order regulates the particular conduct of proceedings during test phases conducted in centres of the Confederation.
The test phase started with the opening of the Confederation centre and lasted two years at most, but until September 28, 2015 at the latest.

Art. 2 the Confederation is considered the Confederation Center one Center waiting or departure as part of testing procedure.

Art. 3 filing of the application for asylum no asylum application may be filed in a Confederation centre. The filing of applications for asylum is governed by art. 19 LAsi.

Art. 4 assignment to a Confederation centre applicants whose asylum application should be treated as part of test phases are chosen as random and assigned to a Confederation centre. The principle of the unity of the family is respected. The well-being of the child is duly taken into account.
Is not assigned to a Confederation centre the applicant who files a request for review or which has already been the subject of a procedure for asylum in Switzerland.
An applicant may claim that his application for asylum is dealt into or out of a test phase.

Art. Unaccompanied minor asylum trust 5Personne (as an exception to article 17, para. 3, let. b, LAsi) as long as an applicant for unaccompanied minor asylum stay in a Confederation centre, legal representation referred to in art. 25 also has the responsibility to a trusted person.
The activity of the person within the meaning of art. 7, al. 3, order 1 of August 11, 1999 on asylum (OA 1) starts, after the allocation to a canton in accordance with art. 19 or art. 21, al. 2, as soon as the unaccompanied minor leaves the Confederation centre.
As part of the Dublin procedure, it continues until the transfer to the competent State Dublin, and under the accelerated procedure, until enforcement of the removal.

New content according to clause I 5 of the O on June 12, 2015, adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).
SR 142.311 art. 6 consequences of participation in the phases of test participation in the test phases must provide no advantage or cause no prejudice to the applicant about the decision on his asylum request.

Art. 7 application of the asylum Act and the Act on foreigners the LAsi and the Federal law of December 16, 2005, on the foreign nationals apply to asylum procedures carried out under testing phases, unless the Ordinance provides otherwise for it relates to the development of the asylum at first instance and of the reference procedure , as well as financial issues are related.

RS 142.20 art. 8 assessment of the Secretariat of State test phases of migration (SEM) is conducting an evaluation of the test phases to the attention of the federal Department of Justice and police (FDJP).
Are evaluated in particular: a. process of the proceedings at first instance; b. the fulfilment of the tasks of providers; c. the effectiveness and economic efficiency of financial expenses and staff.

Assessment takes place continuously and its results can be recorded in interim reports. A final report is made no later than five months after the end of the test phases.
The Department informed the Federal Assembly of the results of the test phases.

The name of the administrative unit has been adapted to 1 Jan. 2015 in application of art 16 al. 3 o from 17 nov. 2004 (RO 2004 4937) official publications. This mod has been taken throughout the text.

Chapter 2 centers of the Confederation art. 9 procedure, waiting or starting centers test phases take place in Confederation centres managed by the SEM. These can be used as centers of procedure, of waiting or centres of departure.
An applicant for asylum can be hosted in a center of procedure: a. in the case of accelerated procedure (art. 17), from the beginning of the preparatory phase until the expiry of the appeal period; (b) in the case of Dublin (art. 18) procedure, for the duration of the preparatory phase; (c) in the event of continuation of the treatment of asylum outside the test phases , until the award to a canton according to art. 22. the applicant engaged in a procedure Dublin can be hosted in a center to wait between the end of the preparatory phase and the expiry of the appeal period.
An applicant for asylum in a Dublin procedure or accelerated procedure can be hosted in a center of starting from the expiry of the period of appeal and until his departure.
Procedure centres, waiting and departure can be grouped in a building or facility.
The duration of the stay in the centres of the Confederation does not exceed 140 days. The stay can be extended for a reasonable period if a quick closing of the asylum procedure or rapid enforcement of the removal requires.
Assignment to a canton can intervene, if necessary, before the expiry of the maximum period of stay referred to in para. 6. attribution to the cantons is governed by arts. 21 and 22.

New content according to clause I 5 of the O on June 12, 2015, adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).

Art. 10 operating SEM may entrust other tasks to ensure the operation of the centres. The third mandated are subject to the obligation of secrecy as well as the staff of the Confederation.
The FDJP enacts provisions relating to the centres in order to ensure the proper functioning and to ensure a speedy procedure.

Art. 11 accommodation in cantonal or communal centers during the test phases, asylum can be accommodated in a centre operated by a canton or a commune when the number of places of accommodation available in the centers of the Confederation referred to in art. 9 is not enough. Accommodation in a Community Center is subject to the consent of the canton with this Center.
The canton or commune housing a Center: a. ensure appropriate accommodation, supervision, and occupancy; b. pays the welfare or emergency aid; c. guarantees health care and education for children; d. takes the necessary security measures to ensure the proper functioning.

The canton or commune housing a centre may delegate all or part of the tasks referred to in para. 2 to third parties.
The granting of social assistance and emergency aid is governed by cantonal law.
The SEM pays, on the basis of a contract, federal contributions to the canton or to the commune housing a center to compensate for administrative costs, personnel costs and remaining costs incurred during the performance of the tasks referred to para. 2. the compensation may be paid in the form of packages.
The other provisions of this order relating to the centres of the Confederation as well as art. 16b OA 1 apply by analogy to the cantonal or communal centres.

RS 142.311 new content according to c I O on June 12, 2015 5. adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).

Art. 12 communication of the steps in the procedure at centers run by a canton or a common the SEM communicates to the centres run by a canton or a commune the date and time of the steps in the procedure for the applicant for asylum.

Chapter 3 applicants Section 1 General art. 13 notification of decisions and communications in the centres of the Confederation (in derogation of art 13, para. 5, LAsi) in centres of Confederation, decisions and communications are notified by way of a discount.
In the case of an applicant asylum to which a legal representative has been appointed, the notification is addressed to the claimant to provide legal representation. This provider, or the legal representative, shall immediately communicate the notification to the applicant.
In the absence of representative legal designated, notified to the applicant. The notification shall be informed immediately to an agent appointed by the applicant. In case to go underground to the applicant, notification must be made according to art. 12 LAsi.

Art. 14 language of the proceedings (art. 16, para. 2 and 3, LAsi notwithstanding) the applicant staying in a Confederation centre formulates its requests in the official language of the canton in which the Center is located.
In a Confederation centre, SEM notifies the decisions in the official language of the canton in which the Center is located.
The SEM can exceptionally waive the al. 1 and 2:

a. If the applicant or his representative control another official language; forgotten the source. If such a measure is temporarily necessary to process applications for asylum efficiently and on time due to the number of applications for asylum or the situation in terms of personnel.

New content according to section I of the Dec. 13 O. 2013, in effect since Feb. 1. 2014 (2013 5363 RO).

Art. 15 repealed by no I of O Dec. 13. 2013, with effect from Feb. 1. 2014 (2013 5363 RO).

Section 2: Procedure of first instance art. 16 preparatory phase (in art. 25 and 26 LAsi notwithstanding) the preparatory phase begins at the time of the assignment to a Confederation centre. It lasts at most ten days if it is a Dublin procedure, and not more than 21 days for other procedures.
During the preparatory phase, the SEM collects personal data of the applicant, is generally his fingerprints and the photograph. It can also capture other biometric data about it, build expertise to determine his age in accordance with art. 17, al. 3, LAsi, check the means of proof, travel and identification documents and take measures of inquiry about the origin and identity of the applicant.
The SEM can, in a first interview, questioning the applicant on his identity, on the route and summarily, on the grounds that pushed him to leave his country. He clarifies with the applicant if his asylum application is consistent with the LAsi and sufficiently justified. If this is not the case and that the applicant withdraws its application, it is classified without a formal decision and the reference procedure is engaged.
The exchange of data referred to in art. 102, art. 2 and 3, LAsi and demand making or taking back to the responsible State bound by one of the association agreements in Dublin (Dublin State) take place during the preparatory phase.
SEM may entrust third parties to the tasks referred to in para. 2. the third mandated are subject to the obligation of secrecy as well as the staff of the Confederation.

New content according to section I of the Dec. 13 O. 2013, in effect since Feb. 1. 2014 (2013 5363 RO).
New content according to section I of the Dec. 13 O. 2013, in effect since Feb. 1. 2014 (2013 5363 RO).
New content according to clause I 5 of the O on June 12, 2015, adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).

Art. 17 expedited procedure the expedited procedure begins when the preparatory phase is complete. It lasts between eight and ten working days.
The procedure includes the following steps: a. preparation of the hearing on the grounds for asylum; b. hearing on the grounds for the asylum application or grant of the right to be heard; c. other potential notice of the legal representative; d. triage: pursuit of the expedited procedure or passage to the proceedings off test phases; e. drafting of the decision; f. the legal representative on the draft decision negative; g. finalization of the decision; h. notification of the decision.

For fair grounds and if it is foreseeable that the decision on the asylum application can be notified in the center of the Confederation, the duration of the procedure referred to in para. 1 may be extended by a few days.

Art. 18 procedure Dublin to the procedural steps referred to in art. 16, al. 2 and 4, is added, in the first interview referred to in art. 16, al. 3, grant to the applicant of the right to be heard about his return in the Dublin State presumed responsible for the review of his application for asylum.
There is no hearing; the accelerated procedure is governed by art. 17, al. 2, let. d to h.
The decision of dismissal of a Dublin procedure is notified within three working days following the approval by the Dublin State required the application of transfer in accordance with the art. 22 and 25 of Regulation (EU) no 604/2013.

R (EU) no 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a national of a third country or a stateless person (recast), OJ L 180 of the 29.6.2013 version, p. 31.
New content according to clause I 5 of the O on June 12, 2015, adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).

Art. 19 off testing procedure if it is apparent from the hearing on the grounds for asylum or as a result of the granting of the right to be heard that a first instance decision can be made as part of an accelerated procedure, the processing of the application continues in a procedure outside test phases and the applicant is assigned to a canton.
The passage to a procedure off test phases especially occurs when it is necessary to engage measures of inquiry or the SEM decided to process the application in accordance with art. 37b LAsi.

New content according to section I of the Dec. 13 O. 2013, in effect since Feb. 1. 2014 (2013 5363 RO).

Art. 20 representative of the charitable organisations during the test phases (as an exception to the art. 29, para. 3, 30 and 94 LAsi) representatives of the charitable organisations provisions contained in art. 29 and 30 LAsi do not apply during the test phases.

Art. 21 award to the canton with a centre and taken into account in the allocation key (as an exception to article 27, para. 4, LAsi) accommodation places are counted on the number of applicants who are entitled to the canton with the Confederation centre according to the allocation under art key. 21, al. 1, OA 1. For the rest, arrangements between the cantons concerning the taking into account of accommodation of the centers of the Confederation places apply.
Individuals for which enforcement of the removal was ordered as part of the test phases are attributed to the canton with the Confederation centre. These people are attributed according to the key referred to in art. 21, al. 1, OA 1.

RS 142.311 new content according to c I O on June 12, 2015 5. adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).

Art. 22 distribution between the cantons the SEM attributed to a canton, making sure to distribute the applicants between all cantons, any person who has obtained asylum or a temporary admission during the test phases.

Section 3 advice and legal representation in the accelerated procedure art. 23 principle the applicant for asylum whose application is processed in a Confederation centre has right to free counsel and legal representation.
The SEM elects one or more providers to accomplish the tasks referred to in para. 1 art. 24 Council on the asylum procedure the Council includes information provided to the applicant on the rights and obligations during the asylum procedure.

Art. 25 legal representation to the first interview in the preparatory phase and the continuation of the asylum procedure, the applicant is assigned a legal representative, unless he expressly renounces.
The legal representative informed as quickly as possible the applicant asylum on the chances of the asylum procedure.
Legal representation is provided until the entry into force of the decision in the case of accelerated procedure or Dublin procedure, or until it is decided to perform the procedure off test phases.
Legal representation ends when assigned representative communicates to the applicant for asylum that he is not prepared to file an appeal because it would be doomed to failure. This communication must intervene as soon as possible after notification of the negative asylum decision.
The tasks of the legal representative are governed by art. 28, al. 1 and 2.

Art. 26 tasks of the claimant the claimant referred to in art. 23, al. 2, is particularly responsible to organize and implement the advice and legal representation within the Confederation centre. It ensures the quality Council and legal representation.
The provider means those responsible to take the advice and legal representation. He attributes the legal representatives to the applicants.
Are empowered to provide counsel persons who, professionally, advise applicants. Are entitled to legally represent a claimant lawyers. Are also allowed holders of a university degree in law which, in a professional capacity, advise and represent claimants.
The claimant and the SEM are exchanging regular information, with a view notably to coordinate tasks and to ensure the quality.

Art. 27 participation of legal representatives in the stages of the procedure


The SEM notifies the claimant of the dates of the first interview conducted in the preparatory phase of the hearing on the grounds for asylum and other stages of the procedure for which the participation of the legal representative is required. When deadlines are provided in time, the acts of the SEM deploy their legal effect even without the presence or participation of a legal representative. Reserved impediments in the short term for serious and excusable reasons.
The legal representative does not give its opinion on the draft negative decision, or gives outside deadlines, although the claimant has received this project in good time, considering he gave up to take a stand.

Art. 28 compensation for the Council and the legal representation the SEM pays the claimant compensation including for the performance of the following tasks: a. information and advice to applicants; b. participation of legal representatives in the first interview in the preparatory phase and at the hearing on the grounds for asylum; c. position on the negative decision taken; d. legal representation during the appeal proceedings especially by writing a memorandum of appeal; e. advocacy of asylum minor unaccompanied as trusted in the centres of the Confederation.

When an asylum application processing continues in a procedure outside testing, compensation is paid for benefits information and advice provided so far to the applicant, as well as for participation in the first meeting in the preparatory phase and the hearing on the grounds for asylum in the Confederation centre.
The SEM shall pay to the provider of federal contributions by contract and on the basis of financially advantageous solutions aimed at: a. compensate administrative and staff costs incurred during the performance of tasks referred to in para. 1; This compensation may be paid in the form of forfaits.b. compensate administrative and staff costs related to the use of independent interpreters at the completion of tasks referred to in para. 1, let. a and c-e; This compensation may be paid in the form of packages.

Section 4 prohibition to exercise a lucrative activity and backfilling art. 29 ban to exercise a lucrative activity (as an exception to article 43, para. 1, LAsi) during his stay in a center of the Confederation, the applicant has not the right to exercise gainful activity. Remains private participation in a program of occupation.

Art. 30 order for reference (as an exception to article 45, para. 2, LAsi) the order for reference is accompanied by a reasonable period. For decisions made in an accelerated procedure, the departure deadline is seven days.
A longer deadline or the departure deadline is extended when special circumstances such as family situation or health problems are present.

Chapter 4 social welfare, relief and federal contributions art. 31 jurisdiction (as an exception to article 80, al. 2, LAsi) as long as people stay in a Confederation centre, social assistance or emergency assistance is provided by the Confederation. The latter ensures, in cooperation with the canton housing downtown, that health care and basic education are provided. She may entrust all or part of these tasks to third parties.
The SEM compensates, on the basis of a contract, the third mandated for administrative costs, staff costs and the remaining costs incurred during the performance of the tasks referred to in para. 1. this compensation may be paid in the form of packages.
SEM may agree with the canton with a center that he reached a compulsory health insurance. The SEM pays a lump sum for health insurance premiums, dividends and franchises.
The canton containing a Confederation centre organizes basic education for asylum minor staying in this centre. The Confederation shall pay a lump sum for tuition fees.

Art. 32 monitoring for emergency aid in the cantons with a centre in collaboration with the canton with a Center, the Conference of cantonal directors of Social Affairs and the Conference of Directors of cantonal departments of justice and police and on the basis of criteria determined by mutual agreement, the SEM le SEM reviews, starting six months after the start of the test phases the evolution of expenditures for people with a removal decision emergency imposed as part of the test phases. The procedure is governed by analogy, by art. 30, al. 3 to 5 of the order on August 11, 1999 on asylum (OA 2) 2.
The FDJP adapted on the basis of the results obtained in accordance with para. 1, the amount of the emergency aid package allocated to the canton with a Center.

SR 142.312 art. 33. other contributions the granting of flat-rate contributions at the expense of security of the cantons in which there are centres of the Confederation and the granting of contributions to programs of occupation for people staying in centres of the Confederation are governed by art. 91, al. 2 and 4, LAsi.

Chapter 5 assisted return and reintegration art. 34 Board to return the SEM encourages, regularly conducting interviews of Council in the centres of the Confederation, autonomous returns of persons whose removal of Switzerland is enforceable.
A first consultation can already take place during the preparatory phase.
The SEM can the tasks referred to in para. 1 to cantonal for return advisory services or third parties.

Art. 35 compensation for the Board to return the SEM makes, on the basis of a contract, federal contributions to providers of consulting services for the return referred to in art. 34, al. 3, to compensate administrative fees and staff costs incurred. This compensation may be paid in the form of packages.

Art. 36 additional financial assistance the SEM may, in respect of assistance to the individual return according to art. 74, OA 2, grant additional financial assistance to people whose asylum application is dealt with under test phases.
This additional financial support amounts to the maximum: a. to 2000 francs per person, if it withdraws his application for asylum before the first interview in the preparatory phase according to art. 16, al. 3, and she left the country during the preparatory phase; b. to 1,000 francs per person, once the decision of first instance notified, if departure comes during the appeal period.

The duration of the stay is decisive for the calculation of the additional financial assistance. The longer the stay in Switzerland has been long, plus this amount can be reduced.
SEM provides more extra financial help after the entry into force of the decision at first instance. Moreover, art. 76a OA 2 shall apply by analogy.

RS 142.312 Chapter 6 proceedings at the federal level art. 37 obiter decisions likely appeals made through test phases the assignment to a Confederation under art centre. 4, al. 3, may be challenged in the context of an appeal against the final decision, and only for breach of the principle of the unity of the family.
The decision referred to in art. 17, al. 2, let. d, may be attacked as part of an appeal against the final decision.

Art. 38 appeal (as an exception to article 108, para. 1, LAsi) appeal against an asylum decision made during an accelerated within the meaning of art. 17 must be filed within ten days of the notification of this decision.

Chapter 7 measures of constraint art. 39 order of detention (as an exception to the art. 80, para. 1, 2 and 3 sentences, and 80a, al. 1, let a., Aug) for people staying in a center of the Confederation, the jurisdiction to order detention in phase preparatory (art. 75 LEtr) is the canton with this Center.
When the order for reference has been notified in a Confederation centre and enforcement of the removal is predictable, the canton housing the centre may place the person concerned in detention prior to return or expulsion to ensure enforcement of the removal.
For people staying in a Confederation centre, the jurisdiction to order the proceedings of Dublin (art. 76 a LEtr) detention falls within Township housing this Center.

New content according to clause I 5 of the O on June 12, 2015, adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).
RS 142.20 introduced by the ch. I-5 of the O on June 12, 2015, adjusting of acts because of what's new in relation to the Dublin/Eurodac acquis, in effect since July 1. 2015 (2015 1849 RO).

Art. 40 participation at the expense of detention


SEM concluded with the competent authorities in justice and security of the canton with a Confederation centre an administrative agreement on the execution of detention referred to in art. 73 and the detention referred to in art. 75 to 78 Aug about people staying in this Center. The amount of the fixed allowance is based on art. 15 of the order of August 11, 1999, the performance of the reference and of the expulsion of aliens.

RS 142.20 RS 142.281 Chapter 8 provision final art. 41. this order comes into force on October 1, 2013 and has effect until September 28, 2015.
The amendment of December 13, 2013 comes into force on February 1, 2014 and has effect until September 28, 2015.
The period of validity of this order is extended to September 28, 2019.

Introduced by the I of O ch. 13 Dec. 2013, in effect since Feb. 1. 2014 (2013 5363 RO).
Introduced by chapter I of O on June 5, 2015, in effect since Sept. 29. 2015 (2015 2055 RO).

RO 2013 3075 RS 142.31 State on September 29, 2015

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