Border procedure (border and transit zones)

Switzerland

Country Report: Border procedure (border and transit zones) Last updated: 14/05/21

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General (scope, time limits)

Switzerland has no land border with third countries other than Schengen and Dublin Member States. There is therefore no special procedure at land borders; persons who request asylum at the border or following their detention for illegal entry in the vicinity of the border shall normally be assigned by the competent authorities to a federal asylum centre, where they enter the same procedure as any other asylum seeker.[2] However, since the summer of 2016 this has not always been guaranteed in practice at the southern Swiss border with Italy, and this was particularly the case during the lockdown due to the COVID-19 pandemic (see Access to the Territory).

There is a special procedure for people who ask for asylum at the airport. Persons who lodge their asylum application at the airport often do so after having been arrested by the airport police because found in possession of fake travel documents. In Geneva, in some cases it happens that they are prosecuted for illegal entry and brought to the police post in the city, where they spend one night before reaching the airport again to start the asylum procedure. It should be further noted that, during the airport procedure, applicants are not considered as having entered the national territory.

If a person arrives at the international airports of Zurich or Geneva and claims asylum, the airport police records the personal details, takes his or her fingerprints and photographs and immediately informs the SEM of the asylum application.[3] The asylum seeker receives a flyer with information on the airport procedure. The SEM decides whether or not to authorise entry into Swiss territory within two working days. If it temporarily denies entry, asylum seekers are allocated a place of stay in the transit zone of the airport where they can be held for a maximum of 60 days, which constitutes de facto detentionsee Detention of Asylum Seekers).[4] Their asylum application will be examined within an airport procedure and a decision must be issued within 20 days. If a person requests asylum at another airport in Switzerland, the person will be transferred to a federal asylum centre and will enter the regular procedure.[5]

In Zurich, the problem has been reported that the airport police confiscate mobile phones and analyses data that are also used in the procedure sometimes.

If entry is temporarily denied in a first stage, a summary interview is organised to ask asylum seekers about their itinerary and the reasons for leaving their country. In Geneva, the SEM is responsible for this interview (SEM has three staff members dedicated to the airport procedure), while in Zurich, it is the airport police which conducts this interview. A legal representative is present during the interview (see below). After this first interview, the SEM can decide to either authorise entry, introduce a Dublin procedure involving the Dublin Unit, or continue the airport procedure with an interview on the grounds for asylum.

The SEM examines if Switzerland is responsible to carry out the procedure according to the Dublin Regulation. The SEM shall authorise entry into the territory if Switzerland is responsible according to the Dublin III Regulation, and if the asylum seeker appears to be at risk under any of the grounds stated in the refugee definition at Article 3(1) AsylA or under threat of inhumane treatment in the country from which he or she has directly arrived; or if the asylum seeker establishes that the country from which he or she has directly arrived would force him or her to return to a country in which he or she appears to be at risk, in violation of the non-refoulement principle. If it cannot immediately be verified if the mentioned conditions are fulfilled, the entry into the territory is temporarily denied.[6]

The airport procedure can result in a decision granting access to the territory (in which case the applicant is channelled into the regular procedure), a negative in-merit decision or an inadmissibility decision (e.g. Dublin or safe third country).[7] In a few cases, it happens that an applicant receives a positive asylum decision within the airport procedure. The decision has to be taken within 20 days after the application was made. If the procedure takes more time, the SEM has to authorise entry, in which case the applicant is usually attributed to the extended procedure and allocated to a canton, but he can also be allocated to a federal asylum centre for an accelerated procedure.[8] If the procedure ends with a removal decision, the applicant can be held in the transit zone for a maximum of 60 days (since the application). If the removal has not been enforced after 60 days, the person concerned can be transferred to an immigration detention centre. This occurs almost systematically in Zurich, where rejected applicants are transferred to the Zurich airport detention centre (situated not inside but next to the airport), while in Geneva, they are led to the competent cantonal authorities who decide whether to detain them or provide them with emergency aid.[9]

In 2020, the number of asylum applications lodged at the airport has significantly decreased due to the COVID-19 pandemic. In Zurich, the airport procedure was suspended in March 2020 for the whole year and the few applications made at the airport were directly handled in an ordinary accelerated procedure in a federal asylum centre.[10] In Geneva, the airport procedure continued to be carried out despite the low number of people concerned.

According to data provided by the SEM, in the whole year 66 requests of entry were lodged (70% less than in 2019), out of which 43 at the airport of Geneva (compared to 93 in 2019) and 23 in Zurich (compared to 126 in 2019). 24 of these persons were arriving in family compositions. The main countries of origin were Turkey, Cameroon and Congo DRC in Geneva; Iran, Congo RDC, Cuba and Turkey in Zurich.[11] The SEM issued 69 authorisations to enter Switzerland, while 8 applications were handled at the airport without entry being authorised: 3 were rejected, 4 were dismissed (because the person could travel to a third country for which they had a visa or a right of residence), and one application was withdrawn.[12]

Personal interview

In the airport procedure, a first interview will take place in every case. In Zurich, the airport police conduct the interview, while in Geneva it is the SEM. A legal representative is present. After having carried out the first interview, the SEM carries out an analysis of the file, after which it can decide to authorise entry, introduce a Dublin procedure implicating the Dublin unit, or continuing the airport procedure with the organisation of an interview on the grounds for asylum.

In Geneva, where the SEM is already responsible to carry out the first interview, if an interview on the grounds for asylum is planned, it takes place immediately after the first summary interview, on the same day. In Zurich, this does not occur since it is the airport police that conducts the first interview. The quality of interviews carried out by the airport police is lower since officers do not have adequate training nor enough experience on conducting asylum interviews. These interviews usually require more intervention from the legal representation than the ones conducted by the SEM.

In Geneva, interviews take place in the SEM offices situated in the detention centre in the transit area.  In Zurich, they take place outside the transit zone, in police or SEM offices situated on Swiss soil that they can only reach being escorted by the airport police. Both in Geneva and Zurich, interviews always take place with translation, mostly on the phone for summary interviews and always in presence for interviews on the grounds for asylum, as in the ordinary procedure. To adapt to the measures for preventing COVID-19 infections, in Geneva a room has been arranged to host five persons participating in the interview. Such arrangement would not allow interviewing applicants who are particularly at risk regarding the virus. In Zurich, no airport procedure has taken place since the lockdown in March 2020 up until March 2021.

 

Appeal

The decision to deny entry in Switzerland and be placed in the transit zone can be appealed so far the SEM has not yet notified the negative or dismissal decision.[13] In 2020, a few appeals in Geneva have been successful since the Federal Administrative Court has considered that the asylum seekers had not been granted the right to be heard regarding that decision as required by the law, as they could only express their opinion in a form.[14] In Zurich, applicants are granted the right to be heard in writing through their legal representative.

The applicant or his/her legal representative can also appeal against a decision taken within the airport procedure, be it a decision on the merit or a decision to dismiss an application. Such appeal must be introduced within 5 working days.[15] The Federal Administrative Court is the competent appeal authority, similarly to the regular procedure. As in the regular procedure, appeals have automatic suspensive effect,[16] except for Dublin decisions, in which case the person has to ask for suspensive effect (for further information, see sections on Regular Procedure: Appeal and Dublin: Appeal).[17]

If the Federal Administrative Court accepts an asylum seeker’s appeal against a decision to deny entry, a negative or dismissal decision, the SEM has to authorise entry and directly allocate the person concerned either to a federal asylum centre or to a canton.[18]

 

Legal assistance

Similar to ordinary asylum procedures, the airport procedure foresees that applicants are assigned a legal representative since the beginning of the procedure for free, unless the asylum applicant explicitly renounces it.

Upon registration of the asylum application, the SEM (in Geneva) or airport police (in Zurich) informs the legal representation, which will contact the applicant within two days to conduct a first counselling interview.[19] The legal representative will also attend the interviews carried out in the context of the airport procedure and meet the applicants in advance to prepare them for the interview. There is no main difference considering legal assistance in the regular procedure and the airport procedure (see section on Regular Procedure: Legal Assistance). According to a legal representative working in Geneva, the fact that sometimes the two interviews (summary and on the grounds for asylum) are conducted on the same day makes it difficult to prepare their clients. The fast pace of the airport procedure also poses some challenges to the provider of legal representation at the organisational level.

Caritas Switzerland is responsible for the legal representation at Geneva airport and the organisation RBS Bern at Zurich airport. Differently from the situation in federal asylum centres, there is no fix or regular presence of these organisations at the airport but they punctually go to the airport for interviews or meetings with the asylum seekers. The organisations providing legal assistance have their own offices: in Geneva, the office is situated in the detention centre, while in Zurich, it is situated far away from the detention centre in the transit area, which is inconvenient for the legal representation. As a consequence, meetings with the applicants are organised in a room within the detention centre in the transit area. Differently from the ordinary procedure, the legal representative will also assure the task of the legal counsellors. According to Caritas, asylum applicants in Geneva have access to their legal representation through the phone. The legal representatives are also able to talk to their clients on the phone when needed and the private company running the centre, ORS, facilitates the contact. In Zurich, applicants also have a mobile phone at disposal to call the legal representation, and a computer is also at their disposal.

 

 

[1]        Article 23 AsylA.

[2]        Article 21(1) AsylA.

[3]        Article 22 AsylA and Article 12 AO1.

[4]        Article 22(5) AsylA.

[5]        SEM, Manuel Asile et Retour, chapter C2, page 4. Available at: https://bit.ly/36mHNG1.

[6]        Article 22(1-bis), (1-ter) and (2) AsylA.

[7]        Article 23(1) AsylA. See also SEM, Manuel Asile et Retour, chapter C2, pages 6-7.

[8]        Article 23(2) AsylA.

[9]        SEM, Manuel Asile et Retour, chapter C2, p. 9.

[10]       Information provided by the SEM, 21 March 2021.

[11]       SEM, Asylum Statistics 2020.

[12]       Data provided by SEM for this report. The higher number of authorisations than requests might be due to cases that were registered in 2019 (before the pandemic, which caused a steady decrease in applications).

[13]       Article 108(3) and (4) AsylA.

[14]       The two decisions are not published in the database of the Federal Administrative Court.

[15]       Article 108(3) AsylA and Article 23(1) AsylA.

[16]       Article 55(1) APA.

[17]       Article 107a AsylA.

[18]       Article 23 AsylA; SEM, Manuel Asile et Retour, chapter C2, page 8.

[19]       Article 7(2) AO 1 and Article 102h AsylA.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection