Alternatives to detention

Switzerland

Country Report: Alternatives to detention Last updated: 14/05/21

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Except from Dublin-related detention, Swiss legislation does not explicitly establish that detention can be ordered only when less coercive measures are not sufficient. However, the examination of alternatives to detention is implied by the principle of proportionality.[1] The FNIA provides for some measures that can be used as alternatives to detention. In particular, Article 64e provides that cantonal authorities can require the foreign national: (a) to report to an authority regularly; (b) to provide appropriate financial security; (c) to hand in travel documents. Those measures can be used with the aim of ensuring the enforcement of removal orders and can function as alternatives to detention. Furthermore, the restriction and exclusion orders (Article 74 FNIA), prohibiting respectively to leave an allocated area or to enter a specific area, were explicitly introduced in the law as alternatives to detention.[2] The implementation of alternatives to detention is not registered as such and there are no statistics available on their use. According to the SEM, there are also no statistics concerning the number of restriction and exclusion orders issued by the cantons.[3]

In 2015, the UN Committee against Torture stated in its recommendations that Switzerland must apply alternative measures to detention.[4] Although some alternative measures exist, they are still too rarely implemented in practice. There are also wide divergences between the practices of different cantons. The National Council Control Committee has stated in a 2018 report that the significant differences among cantons in the rate of detention orders signify that the cantons apply differently the principle of proportionality, raising fundamental questions of equality of treatment.[5]

Regarding Dublin detention cases, the Federal Administrative Court has stated that a restriction order on the territory of the reception centre could be an alternative to detention, subject to an individual examination.[6] The Federal Supreme Court has also highlighted that detention is only admissible as an ultima ratio measure and after a thorough examination of other less coercive measures.[7]

 

 

[1]  See for example decisions of the Federal Supreme Court 2C_1063/2019 of 17.01.2020, c. 5.3.

[2] Businger, Martin (2015). Ausländerrechtliche Haft: Die Haft nach Art. 75 ff. AuG. Zürich: Schultess Verlag. On the topic of alternatives to detention, see also “Die ausländerrechtliche Administrativhaft – Kritik und Alternativen”, from Asylex on humanrights.ch; avalable at: https://bit.ly/3d1c80K.

[3]  Information provided by the SEM, 27 April 2021.

[4] UN Committee Against Torture, Observations finales concernant le septième rapport périodique de la Suisse, Advanced unedited version, 13 August 2015, available at: http://bit.ly/1LuTgEQ, no. 17.

[5]  Détention administrative de requérants d’asile : Rapport de la Commission de gestion du Conseil national du 26 juin 2018. Page 7502. See also Achermann et al, “Administrative Detention of Foreign Nationals in Figures”. in a nutshell #12, January 2019, available at: https://bit.ly/2UcAKKl.

[6]  Federal Administrative Court, decision D-2484/2016 of 27 April 2016, D-1626/2016 of 22 March 2016.

[7] Federal Supreme Court, Decision 2C_1052/2016, 2C_1053/2016, 26 April 2017.

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