Central Migration Information System Data correction under the Data Protection Act: An overview of three recent rulings | HÄRTING Rechtsanwälte

How can incorrect personal data in the Central Migration Information Systembe corrected? Three recent rulings by the Federal Administrative Court and the Federal Supreme Court provide answers and show how the Data Protection Act (DPA) is applied in practice.

12. June 2025

Introduction and legal framework

The integrity of personal data is of paramount importance, particularly in the context of government information systems. The Central Migration Information System (ZEMIS) is the main database of the Swiss migration authorities and contains highly sensitive personal data on foreign nationals, including identity details, residence status, biometric information and links to other official procedures.

The accurate collection and processing of this data is not only important for administrative purposes, but also of fundamental importance in terms of fundamental rights.

With the revision of the Swiss Data Protection Act (DPA), the legislator has significantly tightened key principles of data processing, such as transparency, data accuracy and proportionality.

A core element of the new provisions is the strengthened right of data subjects to have their data corrected in accordance with Art. 41 DPA. According to this, every person has the right to have inaccurate data concerning them corrected or deleted, provided that the legal requirements are met.

The current case law of the Federal Administrative Court and the Federal Supreme Court takes up these provisions and clarifies their application to ZEMIS. Three new judgments provide important guidelines for interpreting the legal situation. They concern in particular the distribution of the burden of proof, the handling of medical reports and the data protection assessment of unclear or contradictory documents. They also address the tension between the individual’s right to accuracy and the public interest in the functioning of data processing in the field of migration. They thus provide valuable guidance for administrative practice and the application of the law alike.

Analysis of the judgments

Judgment of the Federal Administrative Court A-1997/2024 of 24 April 2025

In its judgment of 24 April 2025 (A-1997/2024), the Federal Administrative Court had to decide whether the date of birth of an Afghan asylum seeker entered in the ZEMIS had to be corrected. In his asylum application, the appellant had initially confirmed 1 January 2007 as his date of birth, but later requested that it be corrected to 5 September 2007 (or, alternatively, to 1 January 2007). The State Secretariat for Migration (SEM), however, based on a forensic age assessment and taking into account contradictory information, adjusted the entry to 1 January 2005 and added a note of dispute. The applicant’s appeal was directed, among other things, against this change. The Federal Administrative Court considered that the burden of proof for the exact date of birth had not been met by the appellant. The documents submitted were only in the form of photographs and were of poor quality as evidence, not least because of the known susceptibility of Afghan identity documents to forgery. The applicant’s statements regarding his date of birth and his biography were contradictory, particularly with regard to his periods of education, date of departure and age upon entry. These inconsistencies were not resolved by the medical age assessment.

As a result, the Federal Administrative Court dismissed the appeal in its entirety. The entry in ZEMIS therefore remains, accompanied by a note of dispute.

The case highlights the complex distinction between data protection rights to rectification under Art. 41 para. 2 DPA and the determination of facts under migration law in asylum proceedings.

The Federal Administrative Court clarifies that the right to have inaccurate data corrected under Art. 41 para. 2 DPA is an unconditional individual right vis-à-vis federal authorities. The burden of proof for the accuracy of the requested data change lies with the data subject, unless the inaccuracy of the existing data can be demonstrated. Of particular significance is the finding that in cases where the accuracy of neither the old nor the new data can be proven, further processing is only permissible if there is an overriding public interest. In such a case, a note of dispute must be added in accordance with Art. 41 para. 4 DPA. The ruling also emphasises the role of medical expert opinions as key evidence of data accuracy.

Ruling of the Federal Supreme Court 1C_200/2025 of 13 May 2025

In its judgment 1C_200/2025 of 13 May 2025, the Federal Supreme Court dealt with the question of whether the date of birth of another Afghan asylum seeker entered in the Central Migration Information System (ZEMIS) had to be corrected. In the view of the Federal Supreme Court, the central issue was not the possible minority of the person concerned, but rather the assessment under data protection law of which of two specific dates of birth, the one entered by the SEM and the one claimed by the applicant, was more likely. In his asylum application, the appellant had stated that he was born on 8 April 2007. However, the State Secretariat for Migration (SEM) entered the date 1 January 2006 on the basis of a forensic age assessment. The appellant initially challenged this change before the Federal Administrative Court, which dismissed the appeal. Before the Federal Supreme Court, he requested that the administrative court’s ruling be overturned and that the ZEMIS entry be corrected to reflect the date of birth he had stated. The Federal Supreme Court only partially upheld the appeal. It clarified that the subject matter of the proceedings was solely the data protection issue relating to the ZEMIS entry, and not the decision not to grant asylum, which had already been settled in a separate judgment. The court also did not rule on the application for a declaratory judgment on the grounds of an alleged violation of fundamental rights due to a lack of independent legal interest.

In its decision, the Federal Supreme Court emphasises that requests for rectification under data protection law must be assessed independently of asylum or migration proceedings. This separation strengthens the autonomy of data protection law. To assess the accuracy of the data, the court applies the criterion of ‘overriding probability’, which is a more pragmatic standard of proof. Forensic age assessments are critically evaluated: they only provide usable information if they contain specific probability statements. Documents such as identity cards or UNICEF vaccination records are only recognised as weak evidence due to their lack of reliability and internal contradictions. In the specific case, although the date of birth stated by the complainant was theoretically compatible with the expert opinion, it was not possible to infer a preponderance of probability from this. Against this background, the Federal Supreme Court did not consider it arbitrary that the Federal Administrative Court attached only limited probative value to the applicant’s statements and upheld the previous ZEMIS date of birth with a note of dispute.

The judgment confirms the established practice of correcting personal data in ZEMIS in accordance with data protection law.

Judgment of the Federal Administrative Court F-3197/2025 of 16 May 2025

In its judgment F-3197/2025 of 16 May 2025, the Federal Administrative Court ruled on the admissibility of a decision not to enter into proceedings under the Dublin procedure and on the correction of a date of birth in ZEMIS.

An Afghan complainant had submitted an asylum application in Switzerland on 7 January 2025, stating that he had been born in 2008. However, a hit in the Eurodac database showed that he had already applied for asylum in France in October 2024, where a date of birth in 2001 had been registered. Despite discrepancies in the medical age assessment, the SEM changed the date of birth, adding a note of dispute, and did not consider the asylum application, especially since France was considered the responsible state. The complainant then lodged an appeal against the decision not to consider the application and requested that the original date of birth be entered in ZEMIS. The Federal Administrative Court had to examine whether the appellant was a minor at the time of the asylum application and whether Switzerland was therefore responsible for conducting the asylum procedure, as well as whether the date of birth entered in the ZEMIS (with a note of dispute) should be replaced by the date claimed by the appellant.

The court held that, in cases of credible minority without family ties in the EU area, Switzerland was responsible for conducting the asylum procedure. It emphasised that, when determining age, an overall assessment of all relevant circumstances is necessary, with medical reports only constituting evidence and not being decisive on their own. In the specific case, the court did not find the SEM’s doubts about the appellant’s minority convincing. The medical assessment did not rule out minority, and the appellant’s statements were consistent. As a result, the appeal was upheld both with regard to the Dublin non-admission decision and the ZEMIS data change. However, the requested date of birth was only entered in the ZEMIS with a note of dispute.

This ruling also confirms the independent obligation to review requests for correction. The judges emphasise the need to weigh up the interests in each individual case, based on the overwhelming likelihood that the data is correct. Temporary storage of more likely data with a note is also considered permissible here, provided that there is a public interest. The medical age assessment is understood as one aspect among many, but not as the sole decisive piece of evidence.

Practical implications and recommendations

The three rulings paint a nuanced picture of current practice in data corrections in ZEMIS. On the one hand, the right to correction under data protection law pursuant to Art. 41 DPA is significantly strengthened: Data subjects have a clear right to have incorrect data corrected and can oblige the administration to review and adjust it. On the other hand, the courts also take into account the practical necessity of working with uncertain but probable data, provided that there is an overriding public interest and a note of dispute makes the uncertainty visible.

Careful evaluation of the evidence is crucial. Documents from administrative systems with low reliability, such as Afghan tazkera or handwritten information, are only considered weak evidence unless they are consistent and plausibly embedded. Medical reports, especially those relating to age assessment, are only admissible as evidence if they are based on validated methods and provide comprehensible probability values.

The case law thus emphasises a procedure based on transparency, plausibility and overall assessment. In practice, this means that both applicants and authorities must carefully document, justify and classify their information and decisions.

Conclusion and outlook

The rulings of the Federal Administrative Court and the Federal Supreme Court mark a significant step towards the concretisation of the new data protection requirements in Switzerland. They tighten the requirements for the presentation of evidence, clarify the role of medical reports and make it clear that even unclarified data may be used under certain conditions – provided that the obligation to maintain transparency is observed.

Case law is likely to develop further in the future, particularly with regard to technical issues of data processing and the role of new evidence. However, the basic direction is clear: data protection is also a serious individual right with far-reaching effects in migration law.