Author
Immigration detention in Switzerland is applied for the purpose of removal, as no general detention of asylum seekers is foreseen. The administrative detention of asylum seekers during the asylum procedure is rarely practiced (this is only possible in the form of Detention in preparation for departure and Temporary detention in some exceptional cases), while the other detention types are possible only after a removal decision has been issued. Therefore, most asylum seekers are detained after their procedure has ended with a decision of removal or transfer according to the Dublin III Regulation.
In Switzerland, cantons are competent to enforce removals as well as to use coercive measures aiming at facilitating such enforcement. Cantonal authorities are thus responsible for ordering detention, which leads to a significant diversity of detention practices across the country.[1] Against a cantonal detention order, an appeal can be filed to the cantonal appeal instances. The Federal Supreme Court is responsible for examining appeals against decisions issued by the highest cantonal appeal instance.[2]
The cantons are also in charge of the organisation of detention in terms of capacity and conditions, which results in a high number of facilities used for the purpose of administrative detention and a certain diversity of detention conditions. In the whole national territory there are 258 places reserved for administrative detention, be it in specialised detention facilities or in ordinary prisons.[3] In fact, many of the cantons use normal prisons or other criminal detention facilities for the detention of asylum seekers (see section on Detention conditions).
Statistics on detention
According to data provided by SEM, in 2023 detention was ordered against asylum seekers and other foreigners in 2,305 cases. Of this number, 1,260 are related to asylum seekers – 806 of which were Dublin cases. Temporary detention under Article 73 (which cannot exceed 3 days) concerned 559 short-term detentions, 315 related to asylum seekers — 162 of which were Dublin cases.[4] This data should be read with caution for the following three reasons:
- Immigration detention in Switzerland is applied for the purpose of Therefore, the available data on pre-removal detention often concerns both asylum seekers and irregular migrants not having applied for asylum. For this report, it was possible to obtain data on asylum seekers specifically. When the available data concerns immigration detention in general, this will be specified.
- SEM cannot order detention, only the cantons are competent for ordering such measures,[5] except for the detention of asylum seekers in airport transit zones.
- Although cantons have a legal obligation to report all cases of administrative detention to the SEM,[6] the registration of the relevant information and its quality presents several deficiencies, as reported by a study commissioned in 2018 by the Parliamentary Control of the Administration.[7] Since then, improvements have been made in the statistical record of detentions, according to the monitoring report on 2023.[8]
- The definition of detention of asylum seekers in Swiss law is not totally clear. In particular, temporary detention (up to three days) is not always considered detention. The holding of foreign nationals in airport transit zones is also officially not considered detention. For the scope of this report, we consider both types of confinement as detention.
The question of de facto detention in Switzerland
The term de facto detention has not yet been used in case law. There are good legal reasons for considering the accommodation in the transit zone during the airport procedure de facto detention (see section on Border procedure (border and transit zones)). The same could be said for asylum centres in isolated or remote locations, which provide for limited possibilities of access and movement outside the centres.
Federal asylum centres without processing facilities (also called “departure centres”) are used for the accommodation of asylum seekers whose applications resulted in or are highly likely to result in a Dublin decision, as well as for those receiving a negative decision within the accelerated procedure. Those centres are often located in particularly isolated areas, as in the case of Glaubenberg, Giffers/Chevrilles or Flumenthal. Those areas are poorly served by public transportation, which makes it difficult to receive visitors or leave the perimeter of the centre. Another type of asylum centres are the “special centres” for “asylum seekers who pose a significant danger to public safety and order or who significantly disrupt the operation and security of federal centres”.[9] In April 2020, the Federal Administrative Court concluded that accommodation in a special centre did not represent deprivation of liberty. However, it clarified that the decision to assign a person to such centre must be subject to possible contestation within 30 days, even though the law did not foresee a separate remedy against such decision.[10]
In a legal opinion addressed to Federal Commission against Racism, it was stated that a restrictive exit regime and the remote location of centres are particularly sensitive.[11] The possibilities of moving from one place to another, establishing social contacts and shaping everyday life are very limited. The Federal Supreme Court pointed out that reduced exit possibilities represent a significant encroachment on personal freedom, especially if the restrictions last longer than a few days.[12] This also applies to indirect interventions such as time consuming and thus deterrent control procedures at the exit.
In addition, accommodation in a federal asylum centre can involve deprivation of liberty in the form of sanctions. According to Article 25 of the Decree on the operation of federal centres and accommodation at airports, disciplinary measures include the prohibition of exit the centre for one or several days. Each federal asylum centre has a so-called “reflection room”. This is where asylum seekers whose behaviour poses a threat to other asylum seekers and the federal asylum centres’ staff are temporarily placed while waiting that the police arrive. Following harsh critique on the concept and use of reflection rooms by the NCPT as well as the Oberholzer investigation report,[13] the SEM has introduced an internal directive on the use of such rooms. Since 15 January 2023, the use of reflection rooms is also regulated in the Ordinance of the FDJP on the management of federal reception centres in the asylum system and accommodation at airports. According to the newly introduced Article 29a, such temporary holding must be ordered by the management of the asylum centre only after having informed the police and can last a maximum of two hours, until the police reach the centre. The holding of children under 15 years old is forbidden. It is planned to introduce a similar legal basis in the asylum law as well.
This topic is further discussed in the section on Freedom of movement.
[1] This has been highlighted by the Parliamentary Control of Administration in the cited report. See also Christin Achermann, Anne-Laure Bertrand, Jonathan Miaz, Laura Rezzonico, Administrative Detention of Foreign Nationals in Figures, in a nutshell #12, January 2019, available in English at: http://bit.ly/2wDdHik.
[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. This is because the judicial review of detention under Art. 80a, §. 3 FNIA is a procedural provision that cannot be waived.
[3] Information provided by the SEM, Mars 2024.
[4] Information provided by the SEM, Mars 2024.
[5] Article 80(1) and 80 (1bis) Foreign Nationals and Integration Act (FNIA).
[6] Article15a Decree on execution of removals and expulsion of foreigners, RS 142.281.
[7] Jürg Guggisberg, Aurélien Abrassart and Severin Bischof. Administrativhaft im Asylbereich: Mandat «Quantitative Datenanalysen». Final report for the attention of the Parliamentary Control of the Administration, 16 October 2017. Available at https://tinyurl.com/58k5fhed .
[8] Contrôle de suivi : détention administrative de requérants d’asile: Rapport succinct de la Commission de gestion du Conseil national, 8 September 2023, available at https://tinyurl.com/mpznbt8j ch. 7.1 and 7.2.
[9] Article 24a Asylum Act.
[10] Federal Administrative Court, Decision F-1389/2019, 20 April 2020.
[11] Kiener Regina und Medici Gabriela, Asylsuchende im öffentlichen Raum, Rechtsgutachten im Auftrag der Eidgenössischen Kommission gegen Rassismus EKR, February 2017.
[12] Federal Supreme Court, Decision BGE 128 II 156, 9 April 2002, para 2c.
[13] Following accusations by non-governmental organisations and the media, former federal judge Niklaus Oberholzer was commissioned by SEM to investigate whether violence is being systematically used in federal asylum centres. For more information see https://bit.ly/3PWN1h3.