With asylum systems around the world facing ever-increasing backlogs and delays, it’s time for governments to rethink how they approach processing claims of people seeking safety.
The stakes could not be any higher. Amid increasingly heated political debates, getting asylum processing right is key to safeguarding the future of asylum. Broken asylum systems are pushing governments to take more extraordinary measures to restrict access to procedures or prevent asylum seekers from arriving in the first place. When national governments do not have systems in place that identify who is and is not owed protection in a timely manner, they focus instead on exclusion. Illegal push-backs are on the rise in Europe, the United States and beyond; and wealthy democratic states around the world have been looking to emulate Australia in outsourcing asylum processing and protection to their poorer neighbors.
But fair and fast processing is possible. Switzerland in 2019 adopted a novel approach that holds valuable lessons for other countries. The core lesson from the Swiss experience is that fairness enhances efficiency. Investing in supporting applicants to adequately prepare and put forward their case contributes to faster decision-making and lower rates of appeal. Moreover, a fast process is only possible if there is adequate decision-making capacity and coordination across the system. This all requires significant upfront investment, which poses challenges in the increasingly politicized and polarized context of asylum policy. However, the Swiss experience demonstrates it is possible to sell the long-term benefits and secure wide-ranging support for such reforms through meaningful consultation and consensus building across a wide range of stakeholders and the public. Such an approach can not only deliver fairer and faster processing, but can also play an important role in depoliticizing asylum and its weaponization as an election issue.
What Are Asylum Procedures?
Asylum procedures are how governments identify whether a person is a refugee or owed other forms of protection. Fairness is of utmost importance given the stakes are so high. An incorrect decision that a person is not owed protection can result in person being sent back to a place where they face persecution or even death, in breach of international non-refoulement (or non-return) obligations that governments agreed to in the aftermath of the Second World War. This includes those set out in the 1951 Refugee Convention and its 1967 Protocol, as well those grounded in human rights treaties such as the Convention Against Torture and International Covenant on Civil and Political Rights. The principle of non-refoulement is now also widely recognized as being part of customary international law.
At the same time, it’s important that decision-making can be done fast. Long delays in processing can be devastating to the physical and mental health of asylum seekers and for those who are found to be refugees, integration into their new community.
From the perspective of governments, inefficient procedures are financially costly and can compromise the integrity of the asylum system. Delays can incentivize those without asylum claims to apply for protection anyway, given that applicants are often allowed to live and work in the community until their claims are finalized. Delays also hamper efforts to remove those who are ultimately found not be owed protection. The longer a person remains in the process and lays down roots in the country, the more legal and practical barriers to their removal.
Why Have Previous Attempts to Speed Up Processing Failed?
In most countries with asylum systems, processing is currently neither fair nor fast. This is because governments have generally viewed fairness and efficiency as being in tension. As a result, they have focused on restrictive approaches that limit the ability of a person seeking asylum to put forward their case. This includes so-called fast-track or accelerated procedures that deprive applicants of essential safeguards such as the right to an interview, access to legal advice, and the due-process opportunity to respond to adverse information.
But here is the rub. Not only have these efforts undermined fairness, but they have also actually contributed to longer delays. When applicants face barriers to put forward their claims and have them properly assessed, this leads to an increase in appeals, and more cases being overturned by courts and tribunals, which contributes to longer delays.
Australia’s failed fast-track policies demonstrate this in action, with more than 37% of decisions made through the expedited review process overturned by the courts. Similarly, the United States’ expedited removal procedures have contributed to long delays and backlogs in immigration courts. Under those procedures, asylum officers do not have the power to grant asylum status, but instead refer applicants who pass the credible fear test to immigration judges for assessment. This is a highly inefficient use of the limited decision-making capacity of both asylum officers and immigration judges. It not only creates unnecessary replication, but deficiencies in the screening process have resulted in around 25% of initial decisions where a credible fear was not found being overturned by immigration judges.
The Success of the Swiss Model
In a newly released Kaldor Centre policy brief, we examine the lessons that the success of Switzerland’s 2019 asylum reforms holds for other countries in designing fast and fair asylum procedures.
Central to the model is a default accelerated procedure, with strict timelines for each step and a target total processing time of 140 days (less than five months), which includes both first instance decision-making and review. Whereas other expedited and fast-track procedures have attempted to increase efficiency by dispensing with procedural rights, the Swiss approach is unique in that it retains these safeguards but truncates the timelines in order to ensure faster decision-making. Importantly, there is also a focus on supporting and equipping applicants to effectively put forward their case.
The procedures have received wide ranging political support and succeeded in significantly increasing efficiency without sacrificing fairness for applicants. At the outset of the Swiss reform process, the average time from application to finalization (including review and potential return) was three years and 10 months. This has been reduced to a little over 100 days. Importantly, this has not come at the cost of fairness, with refugee recognition rates remaining largely the same as under the old system.
Key Lessons from the Swiss Model
There are three key elements of the Swiss system that should inform efforts of other countries to design fair and fast procedures.
First, fair and fast processing requires significant investment in decision-making capacity across the board. Fair and fast processing is only possible if there are enough decision-makers to decide and review cases. For example, in the United States, this would require an increase in the number of asylum officers, as well as judges in immigration courts and on the board of immigration appeals. This may look different in other countries, given the diversity in the way asylum and appeal procedures are structured. But regardless of the structure, it is essential that capacity is increased not just for first instance decision-making, but also across all available appellate bodies.
Second, fair and fast processing requires that limited decision-making capacity be used as efficiently as possible. A well thought-out and adaptable way to stream cases into appropriate pathways is one way to achieve this. The Swiss approach uniquely streams every case into accelerated procedures by default, with an ‘off-ramp’ for more complex cases. So, early in the process, a decision-maker assesses whether it will be possible to fairly assess the case within the short timeframes of the accelerated procedures. If not, the complex cases are streamed instead into the extended procedures, which have more flexible procedural timelines (although these too aim for completion within one year).
In practice, the accelerated procedures are used for cases where the facts point to a high likelihood of a person being found to be owed protection, as well as those that are unlikely to succeed. The extended procedures are used for the remainder of ‘hard’ cases which require further investigation.
The benefit of the Swiss approach is that all applicants are treated equally, and the decision about the procedures to which they are allocated is based on an individual assessment of the complexity of their case. Moreover, it prioritizes efficient processing for all applicants, to the extent it is possible to do this fairly.
Third, and most important, applicants must be supported to adequately prepare and put forward their cases. Key to the Swiss efforts in this regard is the fact that every applicant has access to a government-funded, independent lawyer. This recognizes that shorter timelines can only be implemented fairly if applicants have access to legal assistance.
Of course, in a political climate marked by anti-asylum seeker rhetoric, adding more resources to adjudicating claims and providing public funds for legal representation may be hard to sell to the public. However, the Swiss experience demonstrates that this can be overcome through meaningful consultation with relevant stakeholders and effective public communication campaign. Analysis undertaken for the Swiss government by McKinsey & Company in 2015 found that while the proposed reforms would require upfront investment, they would result in overall cost savings flowing from faster processing. The following year, over 66% of Swiss voters supported the new model in a public referendum in 2016.
The Swiss asylum procedures are not perfect. NGOs have criticized the quick timelines, as well as the conditions in Federal Asylum Centres where applicants are held for the duration of the accelerated procedures. The procedures have also been under pressure in the face of increases in asylum applications, reflecting the broader increase in applications across Europe since 2023. This underscores the need for ongoing demand-driven investment in decision-making capacity.
Despite these shortcomings, the Swiss example remains the closest to best practice fair and fast asylum procedures. With pressure on the multilateral system, national governments and refugees themselves, there is no time to waste in implementing a better approach. The central premise of the successful Swiss reforms – that fairness, contributes, rather than detracts from efficiency – holds valuable lessons for other countries that want to effectively deal with the challenge of backlogs and delays.
IMAGE: Ukrainian refugees leaves Zurich Airport after landing from Krakow in a plane chartered by a Swiss millionaire at Zurich Airport, on March 22, 2022. (Photo by FABRICE COFFRINI/AFP via Getty Images)