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, the cantons are competent to enforce removals as well as to use coercive measures aiming at facilitating such enforcement. This means that cantonal authorities are responsible for ordering detention, which leads to a significant diversity of detention practices across the country. 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.
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. There are at least 22 detention facilities across Switzerland including separate sections within prisons, with a total capacity of 352 places. Many of the cantons are actually using normal prisons or other penal detention facilities for the detention of asylum seekers (see section on Detention conditions).
Statistics on detention
According to data provided by SEM in February 2020, detention was ordered against asylum seekers in 2,155 cases (out of a total of 3,604 immigration detention orders including non-asylum seekers). The SEM differentiates between temporary detention under Art. 73 (which cannot exceed 3 days) that concerned 399 detention orders regarding asylum seekers (170 of whom were Dublin cases) and other forms of pre-removal detention that concerned 1,756 orders regarding asylum seekers (994 of which were under the Dublin procedure). The data should be read with caution for the following three reasons:
- Immigration detention in Switzerland is applied for the purpose of removal. As a consequence, the available data on pre-removal detention often concerns both asylum seekers and irregular migrants having not applied for asylum. For this report, it has been possible to obtain data on asylum seekers specifically. When the available data concerns immigration detention in general, this will be specified.
- Since the entry into force of the new asylum procedure on 1 March 2019, the SEM cannot order detention anymore, so now only the cantons are competent for ordering detention.
Although the cantons have a legal obligation to report all cases of administrative detention to the SEM since 2008, the registration of the relevant information and quality of registered information present several deficiencies as reported by a recent study commissioned by the Parliamentary Control of the Administration.
- The definition of detention of asylum seekers in Swiss law is not totally clear. For instance, temporary detention (up to three days) is not always considered detention. However it is considered a form of detention of asylum seekers for the scope of this report.
The Global Detention Project classifies accommodation in the transit zones of Geneva and Zurich airports as well as the Federal Asylum Centres as detention facilities. If these facilities were to be classified as detention, the number of detained asylum seekers would be far higher than the official numbers. There are good legal reasons for classifying the accommodation in the transit zones as detention, given that asylum seekers are locked in and their contacts to the outside world are significantly limited.
Regarding the federal asylum centres, the assessment depends on the concrete situation. Some commentators qualify accommodation in remote locations that are very far from the next municipality as deprivation of freedom, because even if asylum seekers are allowed to leave the centre during certain hours, they do not have any real possibility of social contact, as the centres are so remote and the asylum seekers do not have the means for public transportation. With the introduction of the new asylum procedure, the maximum duration of stay in Federal Asylum Centres has increased to 140 days. Moreover, some of the federal asylum centres without processing facilities (also called “departure centres”) such as Glaubenberg, Giffers/Chevrilles or Flumenthal are located in particularly isolated areas.
For the purpose of this report it was decided not to classify the stay of asylum seekers in the initial reception centres as detention, as it would not present the situation in Switzerland accurately, although the situation in the centres can be qualified as being close to a deprivation of liberty.
It is also not clear whether persons in a Dublin procedure, after the order of the transfer to another Member State, are to be counted as asylum seekers according to the Cimade and GISTI ruling of the CJEU. Following the CJEU’s conclusion, for the purpose of this report these persons are considered asylum seekers. Therefore, this chapter includes detention of persons with a Dublin decision.
The question of de facto detention in Switzerland
The European Court of Human Rights (ECtHR) set out the relevant key criteria for the assessment of de facto detention, these being namely the possibility of movement and the degree of social contact. In Khlaifia and Others v. Italy, the ECtHR stated that applicants had been de facto deprived of their liberty in the CSPA of Lampedusa and in the ships where they were held involuntarily. The restrictions imposed on the applicants violated Article 5(1) ECHR as detention took place without any formal decision. Articles 5(2) and 5(4) ECHR were also violated as the applicants were not provided with the necessary information on the legal bases nor with an effective right to challenge their detention.
In Switzerland, there are ongoing discussions on the distinction between deprivation and restriction of liberty. The term de facto detention has not yet been used in case law. As said before, there are good legal reasons for considering the accommodation in the transit zone during the airport procedure de facto detention. Indeed, legally speaking, this form of accommodation can in some cases be qualified as deprivation of liberty. The same could be said for asylum centres in remote locations, which provide for limited possibilities of access and movement outside the centres. In the past, several authors dealt with the different restrictions imposed on the asylum seekers’ freedom of movement and, in particular, with the framing of their accommodation from a legal perspective. This definition effort is particularly relevant following the entry into force of the new legal provisions on 1 March 2019, which entail new forms of accommodation (see section on Place of detention). As asylum seekers now stay in federal centres for longer periods, the maximum length being fixed at 140 days (Article 24(4) of the Asylum Act), the conditions of their stay and particularly the restrictions on their freedom of movement become all the more relevant for the debate about de facto detention.
The enforcement of the new asylum procedure has seen the creation of new types of federal asylum centres next to the six centres where the asylum applications can be submitted. In particular, federal asylum centres without processing facilities (also called “departure centres”) are used for the accommodation of asylum seekers whose applications result 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 area of the centre. The other new 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” (Article 24a Asylum Act). A first such centre opened in December 2018 in Les Verrières, Canton of Neuchâtel. However, the Federal Council decided to temporarily close it on 1 September 2019, because it had been largely under-occupied. Transfer to these centres cannot be subject to appeal and persons can remain in these centres during the whole procedure or for the maximum duration of 140 days.
In a legal opinion addressed to the attention of the Federal Commission against Racism, Kiener and Medici had stated that a restrictive exit regime and the remote location of centres are particularly sensitive. The possibilities of moving from one place to another, establishing social contacts and shaping everyday life are very limited. The Federal Court points out that reduced exit possibilities represent a significant encroachment on personal freedom, especially if the restrictions last longer than a few days. This also applies to indirect interventions such as a 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. This topic is further discussed in section Border procedure (border and transit zones).
This has been highlighted by the Parliamentary Control of Administration in the cited report. See also Achermann et al, “Administrative Detention of Foreign Nationals in Figures,” in a nutshell #12, January 2019, http://bit.ly/2wDdHik.
 Swiss Competence Centre for the Execution of Criminal Penalties, Monitorage des capacités de privation de liberté, February 2019, 27-34.
 Information provided by the SEM, 12 February 2020.
 Article 80(1) and 80 (1bis) Foreign Nationals and Integration Act (FNIA).
Article15a Decree on execution of removals and expulsion of foreigners, RS 142.281.
 Guggisberg, Jürg, 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.
Prof. Dr. Stefan Trechsel, ‘Die Unterbringung von Asylsuchenden zwischen Freiheitsbeschränkung und Freiheitsentzug’, ASYL 3/14, 3ff. Reference is made to ECtHR, Amuur v France, Application No 19776/92, Judgment of 25 June 1996.
 A visit report by an independent observer can be found at: http://bit.ly/38VCg8A.
 CJEU, Case C-179/11 Cimade and GISTI v Ministre de l’Intérieur, Judgment of 27 September 2012.
 ECtHR, Khlaifia and others v. Italy, Application No 16483/12, Judgment of the Grand Chamber of 15 December 2016.
 Spescha et al. 2019: Kommentar Migrationsrecht, page 676, citing BGE 123 II 193, c. 3c; BGE 134 I 140, c. 3.2 and decision of the ECHR Amuur vs. France, Nr. 1977/92.
 Announcement of SEM on 7 August 2019, available (in French) at: https://bit.ly/2T4h3mc
 Kiener Regina und Medici Gabriela, ‘Asylsuchende im öffentlichen Raum’, Rechtsgutachten im Auftrag der Eidgenössischen Kommission gegen Rassismus EKR, February 2017.
 Federal Court, Decision BGE 128 II 156, 9 April 2002, para 2c.