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Detention at the airport
When an asylum seeker applies for asylum at the airport of Geneva, the Swiss authorities must decide whether to allow their entry into Switzerland within 20 days.[1] In Zurich, the airport procedure was modified at the beginning of the COVID-19 pandemic and people are directed to a federal asylum centre. This is still the case in January 2023. If entry into Swiss territory is allowed, the asylum seeker is assigned to a canton and is entitled to regular reception conditions. If entry is refused, the SEM should provide persons with a place of stay and appropriate accommodation until they leave the country.[2] While the airport procedure is ongoing, asylum seekers are confined in the transit zone. Asylum seekers may be held at the airport or exceptionally at another location for a maximum of 60 days in total,[3] if entry cannot be granted immediately.
The aim of detention at arrival is to prevent unauthorised entry. According to the Federal Supreme Court and to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), it is an uncontested deprivation of liberty, in line with the Amuur v. France ruling of the ECtHR.[4] This type of confinement is based on the assumption that the persons have not yet entered Switzerland.[5] From the moment in which entry into the country has been established, holding in transit zones is no longer permitted under this legal title. The Federal Administrative Court, however, goes further and considers it possible to carry out an arrest to prevent illegal entry even within a certain time and space after the border has effectively been crossed.[6] Yet this brings with it a new difficult question of demarcation.
Temporary detention
So-called “temporary detention” for identification purposes (as far as the person’s personal cooperation is required) or for the purpose of issuing a decision in connection with their residence status may be ordered according to Article 73 FNIA for a maximum of 3 days. In 2022, 406 persons were temporarily detained under Article 73 FNIA . Out of this total number of persons, 249 were asylum seekers, of which 121 were Dublin cases. The average length of temporary detention under Article 73 FNIA was 1.3 day.[7]
Detention in preparation for departure
Detention in preparation for departure may be ordered during the asylum procedure according to Article 75 FNIA to facilitate the conduct of removal proceedings or criminal proceedings. It can be ordered on the following grounds, where persons:[8]
- refuse to disclose their identity, submit several applications for asylum using various identities or repeatedly fail to comply with a summons without sufficient reason or ignore other instructions issued by the authorities in the asylum procedure;
- leave an area allocated to them in accordance with a restriction order or enter an area they are prohibited from entering;[9]
- enter Swiss territory despite a ban on entry and cannot be immediately removed;
- were removed and submitted an application for asylum following a legally binding revocation of their residence or permanent residence permit or a non-renewal of the permit due to violation of or representing a threat to the public security and order or due to representing a threat to internal or external security;
- submit an application for asylum after an expulsion ordered by the Federal Office for Police to protect internal or external national security;
- stay unlawfully in Switzerland and submit an application for asylum with the obvious intention of avoiding the imminent enforcement of a removal or expulsion order. Such an intention shall be suspected if it were possible and reasonable to file the asylum application earlier and if the application is submitted in close chronological relation to detention, criminal proceedings, the implementation of a penalty or the issue of a removal order;
- seriously threaten other persons or considerably endanger the life and limb of other persons and are therefore being prosecuted or have been convicted; or
- have been convicted of a felony; or
- is a risk to Switzerland’s internal or external security according to findings made by fedpol or the Federal Intelligence Service.
In practice, only persons lodging an asylum application in prison or detention facilities or prior to entering Switzerland at Geneva or Zurich airports are likely to be detained during the whole procedure (yet in the latter case under another legal provision, see above). Asylum seekers are rarely detained during the asylum procedure. It mostly occurs in cases where they have committed criminal offences. According to the SEM, in 2022 detention in preparation for departure was ordered 59 times. In 45 cases it concerned asylum seekers (32 of which were Dublin cases).[10]
Detention pending deportation
Detention pending deportation according to Article 76 FNIA is applicable to persons who have received a negative decision as well as a dismissal without entering in the substance of the case (NEM/NEE), for example in case removal to a Safe third country has been ordered.
Once the SEM has issued a decision (expulsion or removal order), cantonal authorities can order a so-called detention pending deportation (“Ausschaffungshaft”) to ensure the enforcement of the decision. This can occur also before the entry into force of the decision.[11] A person can also be kept in detention if they are already in detention in preparation for departure according to Article 75 FNIA.[12] In addition, according to Article 76 FNIA, detention pending deportation can be ordered if persons:
- refuse to disclose their identity, submit several applications for asylum using various identities or repeatedly fail to comply with a summons without sufficient reason or ignore other instructions issued by the authorities in the asylum procedure;
- leave an area allocated to them in accordance with a restriction order or enter an area they are prohibited from entering;[13]
- enter Swiss territory despite a ban on entry and cannot be immediately removed;
- stay unlawfully in Switzerland and submit an application for asylum with the obvious intention of avoiding the imminent enforcement of a removal or expulsion order. Such an intention shall be suspected if it were possible and reasonable to file the asylum application earlier and if the application is submitted in close chronological relation to detention, criminal proceedings, the implementation of a penalty or the issue of a removal order;
- seriously threaten other persons or considerably endanger the life and limb of other persons and are therefore being prosecuted or have been convicted;
- have been convicted of a felony;
- is a risk to Switzerland’s internal or external security according to findings made by fedpol or the Federal Intelligence Service;
- are suspected of seeking to evade deportation, according to serious indications, in particular because they fail to comply with the obligation to cooperate with the authorities;
- based on their previous conduct, it can be concluded that they will refuse to comply with official instructions;
- are issued with a removal decision in a federal centre and enforcement of the removal is imminent.
According to case law of the Federal Supreme Court, a risk of absconding can be found to exist where the person has already disappeared once, they attempt to hinder the enforcement of removal by giving manifestly inaccurate or contradictory information, or if they make it clear, by their statements or behaviour, that they are unwilling to return to his country of origin.[14] As expressly provided for in Article 76(1)(b)(3) FNIA, there must be concrete elements to this effect. The mere fact of not leaving the country within the time limit set for this purpose is not sufficient, taken individually, to admit a ground for detention.[15]
In practice, the assessment of the risk of absconding leaves cantonal authorities a large discretion to order this type of detention. Case law has assessed a risk of absconding in cases where a foreign national has already disappeared, hampers the removal proceedings by providing false or contradictory information, or even if he or she states unwillingness to return.[16] Like for all the other types of detention, detention must be proportional and deportation must be foreseeable in order to be lawful.[17]
According to SEM, in 2022, there were 1,256 persons detained pending deportation (according to Article 76 FNIA, compared to 1,098 in 2021), of which 502 had gone through an asylum procedure. Detention pending deportation ended with deportation in 85% of cases (asylum and non-asylum cases mixed, whereby deportation in asylum cases is often more difficult for the authorities to enforce).[18]
A special provision concerning detention pending deportation exists in the FNIA for cases in which the enforcement delay is due to lack of cooperation in obtaining travel documents.[19] This specific type of detention, regulated under Article 77 FNIA, can be used both with regard to asylum seekers and other foreigners, after the deadline for leaving has expired, and cannot exceed 60 days. It is hardly ever used: 22 cases have been reported in 2022 (of which 19 asylum seekers). This type of detention resulted in deportation in 77% of cases.[20]
Detention in the Dublin procedure
According to Article 76a FNIA, a person in the Dublin procedure can be detained if:[21]
- There are specific indications that the person intends to evade removal;
- Detention is proportional; and
- Less coercive alternative measures cannot be applied effectively.[22]
Article 76a FNIA provides a list of the specific indications that can lead to the assumption that the person intends to evade removal. These are the following:
- The person concerned disregards official orders in the asylum or removal proceedings, in particular by refusing to disclose their identity, thus failing to comply with their duty to cooperate or by repeatedly failing to comply with a summons without sufficient excuse.
- Their conduct in Switzerland or abroad leads to the conclusion that they wish to defy official orders.
- They submit two or more asylum applications under different identities.
- They leave the area that they are allocated to or enter an area from which they are excluded.
- They enter Swiss territory despite a ban on entry and cannot be removed immediately.
- They stay unlawfully in Switzerland and submits an application for asylum with the obvious intention of avoiding the imminent enforcement of removal.
- They seriously threaten other persons or considerably endangers the life and limb of other persons and is therefore being prosecuted or have been convicted.
- They have been convicted of a felony.
- They deny to the competent authority that they hold or have held a residence document and/or a visa in a Dublin State or have submitted an asylum application there.
- They are a risk to Switzerland’s internal or external security according to findings made by fedpol or the Federal Intelligence Service
- If the person resists boarding a means of transport for the conduct of a Dublin transfer, or prevents the transfer in another way by his or her personal conduct.
Different aspects of these provisions are problematic, especially the manner in which the risk of absconding is defined, as well as the maximum duration of detention (see section on Duration of detention), which are not in line with Article 28 of the Dublin III Regulation. The latter was clarified by the Federal Supreme Court in a judgment of 11 March 2022 concerning an Algerian national, who was detained for more than six weeks after the order to return him to Belgium had already become legally binding in the Dublin procedure. The Court stated clearly that the detention provision in Swiss law in this regard is to be interpreted in accordance with the requirements of the Dublin III Regulation in line with the practice of the CJEU.[23]
As a non-EU member state, Switzerland has no possibility to access the CJEU to clarify these issues. This is problematic especially from the perspective of the individual asylum seeker, as there is no effective remedy to contest the violation of EU law by Swiss law.
The Federal Supreme Court set down important principles in a leading case decision of May 2016:[24]
- A person may not be detained for the sole reason that they previously applied for asylum in another Dublin State. There must be an individual examination of specific indications for a high risk of absconding;
- If requested, the legality of the Dublin detention must in principle be reviewed by a judge within 96 hours from the moment of the written request of the detainee; and
- There must not be high formal requirements for the request to have the legality of the detention reviewed.
The Federal Administrative Court has also lifted detention decisions made by the SEM in Dublin cases on numerous occasions. It stated that the SEM had violated the person’s right to be heard by not examining in an individual manner whether there was a high risk of absconding.[25] It also stated that when examining proportionality, a restriction order on the territory of the reception centre could be an alternative to detention.[26] Appeals to the Federal Administrative Court are not possible anymore since federal authorities (SEM) are not competent anymore in the ordering of detention after 1 March 2019. Appeals must be done at the cantonal level first, and only then to the Federal Supreme Court.
According to the SEM, in 2022, there were 1,000 detention orders concerning detention under the Dublin procedure (compared to 1,037 in 2021). Detention under the Dublin procedure has ended with the enforcement of transfer in 76% of cases.[27]
Coercive detention
Coercive detention under Article 78 FNIA can be ordered when a legally enforceable removal or expulsion order cannot be enforced due to the personal conduct of the foreigner. It is aimed at persuading the person to change their behaviour in cases where the enforcement of removal is impossible without their cooperation.[28] This is highly problematic when considering Article 15(4) of the Return Directive, stating that when a reasonable prospect of removal no longer exists, detention ceases to be justified and the person concerned shall be released immediately. In a recent case in relation with the COVID-19 pandemic, the Federal Supreme Court has clarified that coercive detention is only lawful when removal is objectively possible in foreseeable future, the level of cooperation of the foreigner being irrelevant in this evaluation.[29]
In 2022, there were 16 cases coercive detention (compared to 18 in 2021), in 0 cases coercive detention has ended with deportation.[30]
[1] For details on the airport procedure, see section Border Procedure.
[2] Article 22(3) AsylA.
[3] Article 22(5) AsylA. Other locations are not used in practice.
[4] Federal Supreme Court, Decision BGE 129 I 139, 27 May 1997, para 4.4; CPT, Rapport au conseil fédéral suisse relative à la visite effectuée en Suisse par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants du 24 septembre au 5 octobre 2007, para 93.
[5] Federal Council, Message concernant la modification de la loi sur l’asile, de la loi fédérale sur l’assurance-maladie et de la loi fédérale sur l’assurance-vieillesse et survivants du 4 septembre 2002.
[6] Federal Administrative Court, Decision D-6502/2010, 16 September 2010.
[7] Information provided by the SEM, 1 May 2023.
[8] Article 75(1) FNIA.
[9] Article 74 FNIA.
[10] Information provided by the SEM, 1 May 2023.
[11] Federal Supreme Court, Decision ATF 140 II 409, para 2.3.4; 121 II 59, para 2a, 122 II 148, para 1.
[12] Article 76(1)(a) FNIA.
[13] Article 74 FNIA.
[14] Federal Supreme Court, Decisions 2C_256/2013, para 4.2; ATF 130 II 56 para 3.1; 2C_1139/2012, para 3.2.
[15] Federal Supreme Court, Decision 2C_142/2013, para 4.2.
[16] Federal Supreme Court, Decision ATF 140 II 1, 9 December 2013, para 5.3.
[17] Article 96 FNIA, Article 15(1) of the Return Directive.
[18] Information provided by the SEM, 1 May 2023.
[19] Article 77 FNIA.
[20] Information provided by the SEM, 1 May 2023.
[21] Article 76a FNIA.
[22] The principles of necessity (absence of a less coercive measure) and proportionality are valid for the other types of detention as well, although they are clearly stated only for detention under the Dublin procedure.
[23] Federal Supreme Court, Decision 2C_610/2021, 11 March 2022, press release in German available at: https://bit.ly/3r6sWtJ.
[24] Federal Supreme Court, Decision 2C_207/2016, 2 May 2016.
[25] Federal Administrative Court, Decisions D-2925/2016, 17 May 2016; E-2850/2016, 13 May 2016;
D-2484/2016, 27 April 2016.
[26] Federal Administrative Court, Decisions D-2484/2016, 27 April 2016 and D-1626/2016, 22 March 2016.
[27] Information provided by the SEM, 1 May 2022.
[28] Federal Supreme Court, Decision ATF 133 II 97, 2 April 2007, para 2.2.
[29] Federal Supreme Court, DecisionC_408/2020, 21 July 2020.
[30] Information provided by the SEM, 1 May 2023.