Author
According to Article 81(2) FNIA, “detention shall take place in detention facilities intended for the enforcement of preparatory detention, detention pending deportation and coercive detention. If this not possible in exceptional cases, in particular because of insufficient capacity, detained foreign nationals must be accommodated separately from persons in pre-trial detention or who are serving a sentence”. This formulation was introduced on 1 June 2019 in order to align the provision with Article 16(1) of the Return Directive and interpretation of the CJEU and sets a clearer framework for immigration detention, which requires specialised facilities. In a judgement issued in March 2020, the Federal Supreme Court analysed this new legal provision and stated that detention for immigration related purposes must take place in facilities especially dedicated and conceived for this scope and that detention in a non-specialised facility – even in a separated section – is only admissible for short time, in exceptional and well-founded cases.[1]
However, the administrative detention of asylum seekers and other foreigners in prisons that are also holding prisoners under the penal code – usually in separated areas – is still a very frequent solution adopted by cantons. Following this judgement, this practice should be considered unlawful.
Specialised facilities, prisons and pre-trial facilities
In practice, asylum seekers are regularly detained in prisons or pre-trial detention facilities as there are very few detention centres used exclusively for immigration detention. To this latter category currently belong only four facilities: Frambois (20 places) and Favra (20 places) in the canton of Geneva, Bazenheid (12 places) and Widnau (8 places) in the canton of St. Gallen. Altogether, they provide only 60 places out of a total 352 (17%). While the detention centre of Frambois, which resulted from an inter-cantonal cooperation (“Concordat”) of three cantons (Geneva, Vaud and Neuchâtel)[2], has largely the most liberal detention conditions in Switzerland, Bazenheid and Widnau have been strongly criticised in the past.[3] Since the detention of asylum seekers in Switzerland takes the form of pre-removal detention, there is no specialised facility for asylum seekers only, but asylum seekers are detained together with irregular migrants and foreign nationals without or having lost their residence permit.
All other facilities confine both immigration detainees and convicted or remand prisoners. Most facilities dispose of a separated section or even a separate building for the holding of persons detained under immigration law. It happens however in some facilities that such sections are used for other forms of detention or that administrative detention is executed in cells that are not specifically foreseen for this form of detention.[4]
Given the decentralised nature of immigration detention in Switzerland, it is difficult to provide for a list of the facilities used for this purpose. According to a 2018 report of monitoring in the area of liberty deprivation, there are 22 facilities carrying out immigration detention, including separate sections within prisons, totalling a capacity of 352 places.[5] More recent data is not available.
The number of 22 facilities is probably an underestimation since it only includes facilities that permanently reserve some places for immigration detention, but it can also happen that other facilities hold immigration detainees for a few days. Indeed, in the 2019 Catalogue of penitentiary establishments published by the Federal Statistical Office, 13 additional facilities are said to be used for the execution of detention under the FNIA:[6]
In 2018, the cantons estimated a further need of approximately 150 places,[7] which indicates that they are not planning to reduce the number of detentions. In Geneva, it is planned to close down Frambois and Favra and reassign the prison La Brenaz (168 places) to immigration detention by 2023. In Basel, the prison of Bässlergut, which was planned as an immigration detention centre but confined sentenced prisoners as well since 2011, has enhanced its capacity for immigration detention since the expansion of a prison building for the execution of penal sanctions in 2020. Other plans for the creation of new places of administrative detention have been decided in Valais (20 places in Sion) and St. Gallen (52 places in Altstätten), where some smaller detention facilities or sections will be closed down in future.[8] More recent information on the plans is not available.
Airport transit zones
The SEM should provide persons who lodged an asylum application at the airport with a “place of stay and appropriate accommodation” in case entry is temporarily denied.[9] Maximum stay in the transit zone is 60 days in total.[10] The centre situated in the transit zone of Geneva airport has a capacity of 30 places, in Zurich of 60 places.[11] For the purpose of this report, we qualify these as detention centres, although people are not formally detained and they can leave the centre and remain in the airport transit zone in principle.
Reception centres in isolated areas
As detailed in Freedom of Movement and The question of de facto detention in Switzerland accommodation in federal asylum centres that are located in isolated areas may be considered as constituting de facto detention in some cases. See also Types of Accommodation.
[1] Federal Supreme Court, Decision 2C_447/2019, 21 March 2020. In the case under exam, the Court ruled that Articles 81(2) FNIA had not been violated because detention was short (4 days) and motivated (facilitating transportation to the airport).
[2] See the website on the inter-cantonal cooperation of the Heads of the police and justice Departments of the “Latin cantons” that also contains a description of the detention centre: La Conférence latine des Chefs des Départements de justice et police (CLDJP), available at: https://bit.ly/2JbO8YG. The legal basis for the detention centre and a description of the centre may is avaiable at: https://bit.ly/2QzOSLt.
[3] NCPT, Bericht an den Regierungsrat des Kantons St.Gallen betreffend den Besuch der Nationalen Kommission zur Verhütung von Folter in den Gefängnissen der Kantonspolizei St.Gallen vom 5. und 6. Oktober 2015, 17th March 2016, 9.
[4] Parliamentary Control of Administration, 7552.
[5] Swiss Competence Centre for the Execution of Criminal Penalties, Monitorage des capacités de privation de liberté, February 2019.
[6] Federal Office of Statistics, Catalogue des établissements pénitentiaires. Last update on January 2020, available at: https://bit.ly/3tmayLA.
[7] Swiss Competence Centre for the Execution of Criminal Penalties, Monitorage des capacités de privation de liberté, February 2019, 25.
[8] Ibid.
[9] Article 22(3) AsylA. See Border Procedure.
[10] Article 22(5) AsylA.
[11] SEM, Handbook on Asylum and Return, chapter C2, 4.