Author
Review of administrative detention (except for Dublin detention, as described below) is regulated under Article 80 FNIA. In fact, Article 80(2) FNIA provides that the legality and appropriateness of detention must be reviewed at the latest within 96 hours by a judicial authority on the basis of an oral hearing. The same occurs with decisions to extend the detention order.
According to Article 80(3) FNIA, the judicial authority may dispose an oral hearing if deportation is anticipated within 8 days of the detention order and the person concerned has expressed their consent in writing. If ultimately deportation cannot be carried out by this deadline, an oral hearing must be scheduled at the latest 12 days after the detention order.
According to Article 80(4) FNIA, when reviewing the decision to issue, extend or revoke a detention order, the judicial authority shall also take account of the detainee’s family circumstances and the conditions under which detention is enforced. In no event may a detention order in preparation for departure or detention pending deportation be issued in respect of children or young people who have not yet attained the age of 15. The Court also needs to examine if detention is proportional and if removal could not be achieved through other means.[1]
The detainee may submit a request for release from detention one month after the detention review. The judicial authority must issue a decision on the basis of an oral hearing within 8 working days. A further request for release in the case of detention in preparation for departure (Article 75 FNIA) may be submitted after one month or in the case of detention pending deportation (Article 76 FNIA) after 2 months.[2]
In the Jugment BGE 2C_457/2023, the Federal Supreme Court has clearly stated that every detained person has the right to “appeal to a court at any time” and thus to determine the timing of the review. According to the Supreme Court, the judicial review of detention under Art. 80a, § 3 FNIA is a procedural provision that cannot be waived.
The detention order shall be revoked if: the reason for detention ceases to apply or the removal or expulsion order proves to be unenforceable for legal or practical reasons; a request for release from detention is granted; or the detainee becomes subject to a custodial sentence or measure.[3]
Review of Dublin detention is regulated by Article 80a FNIA. It represents an exception since no automatic review is foreseen. In case of detention under a Dublin procedure, the legality and appropriateness of detention shall be revised by a judicial authority only upon request of the detainee and in a written procedure (both the request and the examination are done in writing). This review may be requested at any time. According to a ruling of the Federal Supreme Court, the review should in principle be conducted within 96 hours after the request.[4] Later, a request for release can be submitted as mentioned above.
Detention under the Dublin procedure cannot be ordered by SEM, review procedures are therefore carried out at the cantonal level. Again, cantonal practice is very diverse with regard to judicial review. National legislation provides for important safeguards, but compliance with these safeguards is not guaranteed in all cantons. Each canton organises its system of judicial review, and the practice of cantonal Courts is very diverse. It is not possible to provide an overview of all cantonal practices here. The judicial review can be appealed at cantonal level and in the last instance at the Federal Supreme Court, however given the long and expensive procedure, few appeals reach the Federal Supreme Court.
The Swiss Refugee Council has observed that in cases of Dublin detention, the requirements set by Swiss law as well as Article 28 of the Dublin III Regulation were not always met, at least until the Federal Supreme Court and Federal Administrative Courts set down some ground rules (see Grounds for Detention: Dublin Procedure). The Swiss Refugee Council also suspects that detainees in the Dublin procedure are insufficiently informed that they must themselves ask in written form for a review of the detention. To help remedy this, the NGO has drafted a basic form in four languages with which to ask for a review of the Dublin detention order.[5] Another challenge, however, remains the distribution of this leaflet to the relevant persons.
The SEM does not have statistics on the number of release requests filed or the number of judicial reviews requested by asylum seekers in detention under the Dublin procedure.[6]
[1] Federal Supreme Court, Decision 2C_1063/2019 of 17 January 2020, para 5.3, with references to 2C_263/2019 of 27 June 2019, para 4.3.2 and 2C_466/2018 of 21 June 2018, para 5.2.
[2] Article 80(5) FNIA.
[3] Article 80(6) FNIA.
[4] Federal Supreme Court, Decision 2C_207/2016, 2 May 2016.
[5] The form can be found in English, French and German, available at: https://bit.ly/419uMsX.
[6] Information provided by the SEM, 27 April 2021.