Ordinance 3 of August 11, 1999, on Asylum relating to the Processing of Personal Data (OA 3) - Scope (OA3)

This ordinance is applicable insofar as the Dublin Association Agreements do not provide otherwise.

The Dublin Association Agreements are mentioned in Annex 4.

The State Secretariat for Migration (SEM) operates the following information systems within the framework of executing its legal duties: a. the central migration information system (SYMIC) in accordance with the SYMIC Ordinance of April 12, 2006; b. the Kompass database; c. the loan administration; d. ... e. the database on financing, statistics, and management control (FiSCo); f. the database on medical cases; g. the "Individual Return Assistance" database; h. ... i. the information system intended for Confederation centers and housing at airports (MIDES); j. the AURORA information system referred to in Art. 12 of the Ordinance of August 11, 1999, on the execution of the removal and expulsion of foreigners; k. the interpreter pool database (DOPO); l. the deadline management tool (FM-Tool).

The Kompass database collects documents containing information about the countries of origin of asylum seekers.

It does not include any sensitive data. If a document not originating from a public source contains names of individuals, it is anonymized before being entered into the database.

All employees of the State Secretariat for Migration (SEM) and the Federal Administrative Court have access to the data.

The SEM may make the information contained in Kompass accessible, through a request procedure, to: a. cantonal foreign police authorities; b. representatives of the federal administration who need information about the countries of origin of asylum seekers to perform their work; c. authorities of foreign states and international organizations with which Switzerland maintains an institutionalized information exchange.

The loan administration records the loans granted to recognized refugees.

The staff of the SEM responsible for the administration of loans have access to the data.

The FiSCo database contains the data necessary for the payment of the allowances referred to in Art. 20, 22 to 24a, 26 to 29, and 31 of Ordinance 2 of August 11, 1999, on Asylum Relative to Financing (OA 2) and Art. 15 of the Ordinance of August 15, 2018, on the Integration of Foreigners (OIE) as well as for statistical analyses relating to these allowances.

It has an interface with the SYMIC system to consult the following personal data of asylum seekers, provisionally admitted persons, persons in need of protection, refugees, and stateless persons: name, first name, date of birth, gender, nationality, residential address (with start and end dates), SYMIC number, N number, date of entry into Switzerland, status of the procedure (with date), type of case (with date), manner of resolving the case (with date), entry into force of decisions rendered in the asylum procedure (with date), expulsion and departure deadline, admission code, purpose of stay, permit category (with date), date and reason for departure, asylum employment and LEI employment (with start and end dates), AVS number, allocation and distribution (with date).

The employees of the SEM responsible for the payment of allowances and related statistical analyses have access to the data.

The employees of the cantons responsible for the implementation of this subsidization have read access to the data relating to their canton recorded during the last four calendar years.

All persons with writing and reading rights in FiSCo can enter additional remarks regarding the financing of an individual case.

The database on medical cases contains the presentation of facts and decisions regarding medical cases. It enables the establishment of a uniform procedure for handling medical cases.

Employees of the SEM responsible for medical cases have access to the data.

The "Individual Return Assistance" database contains the accounting of amounts paid to applicants for individual return assistance.

Employees of the SEM responsible for monitoring and evaluating individual return assistance have access to this database.

MIDES is used for processing the personal data of asylum seekers and individuals to be protected.

Annex 5 defines all the data contained within MIDES, the access levels, and the authorizations for data processing.

The SEM specifies in a processing regulation, in particular, the organizational and technical measures to be taken to prevent unauthorized data processing and regulates the automatic logging of data processing and data security.

The DOPO database contains the following data concerning individuals essential for planning and conducting hearings: a. personal data; b. intervention plans; and c. data relevant for the remuneration of the following persons: 1. interpreters, 2. recorders, 3. country of origin specialists, 4. LINGUA experts, and 5. LINGUA staff responsible for hearings, 6. performance evaluators for interpretation, 7. persons responsible for hearings within the auditor pool.

Access to this data is granted to SEM staff responsible for planning and conducting hearings, as well as for disbursing remunerations in accordance with para. 1, let. c.

Service providers responsible for providing legal advice and representation according to Art. 102f, para. 2, LAsi have: a. the right to access the intervention plan of their organization's legal representatives and their region, containing planned interviews and availabilities; b. the right to view planned interviews; c. the rights to enter and modify in their personal intervention plan the availabilities of their organization's legal representatives and their region; d. the right to view the intervention plan of their region.

The following persons can access only their own intervention plans: a. interpreters; b. recorders; c. country of origin specialists; d. LINGUA experts; e. LINGUA staff responsible for hearings; f. performance evaluators for interpretation; g. persons responsible for hearings within the auditor pool; h. legal representatives.

The DOPO database has interfaces with the following systems: a. SYMIC to consult data of asylum applicants necessary for planning hearings, especially the reference number, nationality, language, as well as the date and place of application submission; b. the BV PLUS federal administration personnel information system to retrieve data necessary for paying remunerations according to para. 1, let. c; c. the standardized GEVER Confederation product, to ensure electronic management of personnel files and improvement of process management.

FM-Tool features interfaces with the SYMIC, MIDES, and DOPO systems to facilitate centralized viewing of relevant data essential for the asylum procedure.

Annex 6 specifies all the data referred to in paragraph 1, their source, as well as the interfaces between FM-Tool and the SYMIC, MIDES, and DOPO systems.

None of the data referred to in paragraph 1 is recorded in FM-Tool. Only comments related to various stages of the procedure may be recorded.

Access to FM-Tool is granted to users who already have access to the SYMIC, MIDES, and DOPO systems.

The SEM establishes, in a processing regulation, specific organizational and technical measures to prevent unauthorized processing of data, and regulates the automatic logging of data processing and data security.

Federal and cantonal authorities contemplating the disclosure of data pertaining to an asylum seeker, a recognized refugee, or a person in need of protection residing in Switzerland to the country of origin or provenance must first ensure with the SEM that the asylum application has been rejected in the first instance, or that a decision of non-consideration of the case has been rendered, or that the disclosure of such data does not endanger the individual concerned or their relatives.

If it becomes necessary to transmit the fingerprints of an individual to their country of origin or provenance for the purpose of ensuring the execution of their removal, it must not be apparent that the individual concerned has filed an asylum application in Switzerland.

When there are serious reasons to suspect a crime under Art. 1, Sec. F, let. a and c, of the Convention of July 28, 1951, Relating to the Status of Refugees, the SEM provides the competent law enforcement authorities with the information and evidence it possesses.

In order to establish the identity of asylum seekers and persons in need of protection, the competent authorities may collect the following biometric data: a. fingerprints; b. photographs.

Access to the data listed in para. 1 is regulated in Annex 1 of the Ordinance of April 12, 2006, on the Central Migration Information System (SYMIC Ordinance). The biometric data are recorded in the Automated Fingerprint Identification System (AFIS), which contains no personal data.

No biometric data concerning children under the age of 14 accompanied by one of their parents will be collected.

Biometric data concerning unaccompanied children under the age of 14 are only collected if processing them facilitates their identification.

When applications submitted abroad, at the border, in airports, or within the cantons are presented, the competent local authorities collect the biometric data.

When the request comes from a detainee, the State Secretariat for Migration (SEM) requests the fingerprint form established by the police from the Federal Office of Police (fedpol). It affixes an asylum procedure control number to it before returning it to fedpol for separate registration as an asylum form.

The SEM may assign private companies to collect and process biometric data in registration and processing centers and in airports, insofar as these companies can guarantee compliance with data protection provisions.

The SEM provides law enforcement services with the biometric data at its disposal, if necessary, for clarifying offenses. The police services are only authorized to transmit these data to foreign authorities with SEM’s consent.

When biometric data collected by foreign police services (INTERPOL) match those recorded by the SEM, the latter decides, pursuant to Art. 97, para. 1, of the Asylum Act (LAsi), if it is lawful to transmit the results to foreign authorities.

There is appropriate protection of the person concerned within the meaning of Art. 102 c, para. 3, Asylum Act (LAsi) when appropriate safeguards meet the requirements of Arts. 9 to 12 of the Ordinance of August 31, 2022, on Data Protection (OPDo).

In the context of applying the Dublin Association Agreements, before transferring an asylum seeker to the responsible State bound by one of these agreements (Dublin State), the SEM must transmit the following data to that State: a. the personal data mentioned in Annex VI of Regulation (EC) No 1560/2003, and b. for persons requiring medical care or treatment, the information regarding their physical and mental health status in accordance with Annex IX of Regulation (EC) No 1560/2003.

The information in para. 1, let. b, can be transmitted only between health professionals or persons subject to an equivalent professional secrecy and only with the express consent of the person concerned or their representative. If the person concerned is unable to provide consent for physical or legal reasons, data concerning them may exceptionally be transmitted without their express consent if the protection of their vital interests or those of a third party requires it.

The procedure is governed by Arts. 31 and 32 of Regulation (EU) No 604/2013 and Arts. 8, para. 3, and 15a of Regulation (EC) No 1560/2003.

In specific cases, the SEM may communicate personal data to federal, cantonal, and municipal authorities as well as to private organizations, when they require such data to fulfill their legal duties.

Generally, personal data is not communicated to private individuals. Exceptionally, the address of a person may be communicated when the requesting party is able to prove that it is necessary for exercising their rights or for defending other interests worthy of protection.

The SEM may communicate lists containing personal data to the authorities of the Confederation, the cantons, and the municipalities, as well as to private organizations, if they need them for the fulfillment of their legal duties and the processing by the requesting authority is compatible with the objective defined in this matter by the law.

The communication of lists containing personal data to individuals is not permitted.

The following personal data from electronic data media, including sensitive data as defined in Art. 5, let. c, of the Federal Act on Data Protection of September 25, 2020 (FADP), may be analyzed: a. Information regarding the identity and nationality of the person concerned; this includes addresses, phone numbers, audio and visual recordings, and documents; b. Information regarding the travel itinerary of the person concerned; this includes navigation data, audio and visual recordings, and documents.

Personal data protected by a professional secret to which the person concerned is subject under Art. 321 of the Criminal Code cannot be analyzed.

Only SEM staff members who: a. perform tasks related to establishing the identity and nationality of asylum seekers; b. are responsible for conducting the asylum procedure; c. carry out tasks related to supporting the cantons in the execution of removals in the field of asylum, may process personal data originating from electronic data carriers.

The SEM ensures that the staff members referred to in para. 1 receive the necessary training in data protection to fulfill their duties.

To ensure proportionality, the information and statements provided by the person concerned, as well as official documents such as birth certificates or driving licenses that allow for relevant conclusions about identity, nationality, or the route taken, must be considered. The SEM verifies whether other appropriate measures, particularly those provided for by Art. 26, paras. 2 and 3, of the Asylum Act (LAsi), allow for obtaining the desired information.

Appropriate measures are implemented if they infringe on the fundamental rights of the person concerned to a lesser degree.

The SEM regulates the procedural modalities through a directive.

In order to prepare the analysis of personal data, the SEM may process personal data from electronic data carriers using software. The software used must meet a forensic standard.

If software is used, the SEM requests the concerned individual to provide and unlock their electronic data carriers for the duration of the software use. Upon express request, the individual may be present during the use of the software.

The SEM ensures that personal data is not altered during the use of the software.

The electronic data carriers are returned to the individual as soon as the software is no longer used to process personal data.

If the SEM anticipates a temporary storage of personal data for the purpose of subsequent analysis in accordance with Art. 8a, para. 5, Asylum Act (LAsi), it shall request the person concerned to provide and unlock their electronic data carriers for the duration of the storage. The person concerned may, upon express request, be present throughout the entire operation.

The electronic data carriers are returned to the person concerned upon the conclusion of the temporary storage.

During their temporary storage and until analysis, personal data may not be processed for other purposes.

A temporary storage can only be conducted once the examination of proportionality is complete. The personal data shall be analyzed as soon as possible after their temporary storage.

If personal data from electronic data carriers is not temporarily stored, particularly for technical reasons, and no software is used, the data is visualized and analyzed directly from the data carrier of the concerned party, in accordance with Art. 10a. The electronic data carriers are returned to the concerned party upon the completion of the analysis.

The analysis of personal data from electronic data media is conducted in the presence of the person concerned. It may be conducted in the absence of the person concerned if they have previously submitted a written waiver or refused to participate. The SEM records the refusal to participate and its reasons. In all cases, the person concerned must have the opportunity to comment on the results once the analysis of the personal data is completed.

The SEM informs the concerned individuals, upon their arrival at a Confederation center or in an accommodation located at an airport, about their rights and obligations related to the processing of personal data from electronic data carriers.

At the same time that the SEM requests the individual to hand over their electronic data carriers, it provides detailed information regarding: a. the purpose of the handover; b. the personal data being processed; c. the possibility that the personal data of third parties on their electronic data carrier will be processed in accordance with Art. 8a, para. 2, Asylum Act (LAsi); d. the methods and duration of the temporary storage; e. the use of software for processing the data; f. the deletion of temporarily stored personal data; g. the categories of individuals authorized to process their data; h. the extent of their obligation to cooperate, the consequences of a violation of their obligation to cooperate, as well as the legal remedies provided by the LAsi; i. the existence of the right of access, the right to rectification, and the right to deletion of data, as well as the procedures to follow to exercise these rights; j. their right to be present during the data processing as provided in Art. 10d, para. 2, and 10e, para. 1, and during the analysis provided in Art. 10g and the right of the legal representative to be present according to Art. 10i, para. 1; k. their right to obtain a declaratory ruling in accordance with Art. 25a of the Federal Act of December 20, 1968, on Administrative Procedure.

The information referred to in para. 2 is communicated to the concerned individual in writing and in a language they understand. The individual confirms in writing that they have received it.

The legal representative may be present during the processing of personal data. The SEM informs the provider or the legal representative of the planned processing of personal data derived from electronic data carriers and communicates all deadlines to them.

If necessary, the SEM uses an interpreter during the processing of personal data.

A fingerprint expert from the AFIS DNA Services of the Federal Office of Police (fedpol) is tasked with verifying the results obtained from the consultation of the Eurodac database.

In case of a positive response to a consultation of the Eurodac database, the SEM makes the results accessible to the AFIS DNA Services. The expert conducts the verification as promptly as possible and immediately transmits the verification result to the SEM.

If it emerges from the verification that the fingerprints do not match, the SEM immediately deletes the consultation result.

The SEM informs the European Commission and the eu-LISA agency of the fingerprint non-correspondence as soon as possible, but no later than within three working days.

The AFIS DNA Services also verify the fingerprints: a. when, following the granting of international protection to a person by a Dublin State and the consequent marking of the data in Eurodac, the SEM is informed that it had already entered this person's data and receives the fingerprints from the central unit for marking, or b. when, during the anticipated deletion of a person's data in Eurodac, the SEM is informed that it had already entered this person's data and receives the fingerprints from the central unit for deletion.

If a person asserts their right of access, right to rectification, or right to erasure of Eurodac data, they must provide the necessary identification details, including fingerprints, and submit a written request to the SEM.

The SEM processes the access request in coordination with the authority that recorded the data or with the state that transferred the data to the central unit.

The SEM records every access request and forwards it to the Federal Data Protection and Information Commissioner (FDPIC). It informs the FDPIC of how the request has been processed.

If a person asserts their right to rectification or erasure of Eurodac data that was not recorded by Swiss authorities, the SEM contacts the states that recorded the data within a reasonable timeframe and transmits the request to them. The SEM informs the concerned person of the transmission of the request.

The SEM processes requests for access, rectification, or erasure without delay.

It confirms in writing, without delay, any rectification or erasure of data to the person concerned. If it is not prepared to rectify or erase the data, it provides the reasons.

The necessary identification details of the person mentioned in para. 1, including fingerprints, are erased immediately after processing the request.

Liability in the event of damages related to the operation of Eurodac is governed by the law of March 14, 1958, on liability, in particular by its Articles 19a to 19c, which apply by analogy.

In the performance of its duties, the Federal Data Protection and Information Commissioner (FDPIC) collaborates with the European Data Protection Supervisor; it serves as the national contact point for the latter.

The FDPIC is the national authority within the meaning of Articles 29, paragraphs 11 to 13, and 30 of Regulation (EU) No 603/2013. It is responsible for fulfilling the tasks defined in these articles.

Data security is governed by: a. the OPDo; b. the ordinance of November 8, 2023, on information security; c. ...

Data that is no longer in use is archived or destroyed. It is archived or deleted in collaboration with the Federal Archives.

...

The SEM may communicate personal data to authorities, universities and their institutes, as well as private organizations for purposes related to research and planning. The names of the individuals concerned must not be provided, insofar as the purpose of processing allows it. The results must be published in such a way that it is impossible to identify the individuals concerned. The transmission of these data is only lawful with the consent of the SEM.

The SEM is competent to conclude international treaties concerning the adoption of implementing acts of the European Commission that specify the content of monthly intersystem statistics and that have been adopted based on Art. 12, para. 3, of Regulation (EU) 2024/1358, provided that these acts constitute international treaties of minor importance within the meaning of Art. 7a of the Government and Administration Organization Act of March 21, 1997.

The present ordinance comes into force on October 1, 1999.