Detention of vulnerable applicants

Author

Swiss Refugee Council Visit Website

The law prohibits the detention of children under 15. Detention for minors between 15 and 18 is currently possible and can last a maximum of 12 months (whereas detention of adults can last up to 18 months).[1]

The following numbers regarding child detention were provided by the SEM from 2018 to 2022:

Source: SEM, 19 March 2021, 1 April 2022, 1 May 2023.

According to a report published by the National Commission for the Prevention of Torture (NCPT) in 2019, two cantons (Geneva and Neuchâtel) formally prohibit the detention of minors (including those of 15 and above) in their cantonal law, while five (Basel-Land, Jura, Obwald, Nidwald, Vaud) do not order administrative detention as a matter of principle. In several other cantons, no detention of minors was registered in 2017 and 2018. On the other side, ten cantons have communicated having placed minors in administrative detention in the same period (Aargau, Basel-Stadt, Bern, Glarus, St-Gallen, Solothurn, Uri, Valais, Zug, Zurich). The length of detention was particularly long in Bern, Valais, Zug and Zurich. The NCPT also highlights that most minors are detained in prisons for the execution of penalties or remand prisons, which are inadequate.[2]

NGO Terre des Hommes reported in 2018 that most cantons avoid detaining whole families, however in case of non-collaboration, some cantons detain the father, while the mother and children stay in the reception centre.[3] In some (rare) cases it can also happen that a single parent or both parents are detained, while the children are placed in foster care or a home. If a mother of a baby is detained, it can happen that the baby is placed in detention with her. Since the child is not formally detained in those cases, there are no data on this measure.[4] This occurred especially in the cantons of Bern and Zurich, but Zurich stated that it had ended this practice on 1 July 2018.[5] This practice is unlawful since the FNIA prohibits the detention of children under the age of 15. Furthermore, it is very problematic from the point of view of the right to family life and the best interests of the child. The Swiss Refugee Council’s view is that children and families should never be detained. The position of the Federal Council goes in the same direction.[6] On 28 September 2018, the Federal Council responded to recommendation No 4 of the Parliamentary Control of Administration by stating that the SEM will ask the cantons to avoid detention of children below 15 and study alternatives for the enforcement of families’ removals.[7] However this cannot be guaranteed since detention is within the competence of cantonal authorities.

The Federal Supreme Court ruled in favour of an Afghan family in a judgment from April 2017 regarding the detention of the parents of four children and the separation of the family. The authorities faked a transport of the five-person family from the asylum centre to an apartment, but instead brought them with packed suitcases to the airport in order to return them to Norway where they had been issued a negative asylum decision. The family refused to board the plane because they feared to be deported from Norway to Afghanistan. After they refused to enter the plane, the family was separated. The authorities of the Canton of Zug arrested the parents for three weeks and placed the children somewhere else in order to force them to leave the country. The Court recognised the human misery in which the complainants found themselves, in particular due to the lack of the possibility to make contact with each other and with their children during their detention and stated that the experienced treatment almost reached a threshold of Article 3 ECHR. Furthermore, the Court considered the detention of the complainant with her four-month-old baby in the Zurich airport prison, separated from her three other, older children, was not an ultima ratio and was thus disproportionate. Therefore, the Court found a violation of Article 8 ECHR.[8] This is not an isolated case. In many cases, detention and the ordering of coercive measures are disproportionate, yet the lack of access to legal representation prevents many asylum seekers from appealing against it.

As regards the conditions of detention, Article 81(3) FNIA contains special rules, which require taking into account the specific needs of vulnerable persons, unaccompanied children and families in detention arrangements. However, it is not clear how exactly this provision is translated into practice, particularly since ordinary prisons are often used for carrying out immigration detention despite this being forbidden by law (with exceptions). In particular, minors are not always separated from adults in practice.[9] The Committee on the Rights of the Child recommended that all cantons should take measures to prevent the placement of children with adults during different kinds of confinement, including administrative detention.[10] Terre des Hommes reports that the conditions in which the detention of minors occurs are unacceptable and put them at risk of abuse, particularly if the separation from adults is not respected.[11]

There are few facilities with places reserved for the administrative detention of women. Since the facilities only house a small number of women and the places are often empty, women can find themselves in a condition of loneliness and de facto isolation.[12]

Regarding the detention of asylum seekers in airport transit zones during the airport procedure, vulnerable applicants – including unaccompanied minors – can also be held at the airport. This usually occurs during the first days after their application. When the vulnerability is manifest, for example in cases of unaccompanied minors or pregnant women, entry into the territory is usually allowed faster, for example after the summary interview.

[1] The Parliament had to decide on an initiative that asked to forbid detention of minors altogether, the National Council approved, but the Council of States rejected the initiative twice: See website of the Swiss Parliament, available in German at: https://bit.ly/3ud3GE6.

[2] NCPT, Rapport au DFJP et à la CCDJP relatif au contrôle des renvois en application du droit des étrangers, d’avril 2018 à mars 2019, 24 May 2019, available at : https://bit.ly/3KYmkIH, 16-18.

[3] Terre des Hommes, État des lieux sur la détention administrative des mineur.e.s migrant.e.s en Suisse, November 2018, 77.

[4] NCPT, Rapport au DFJP et à la CCDJP relatif au contrôle des renvois en application du droit des étrangers, d’avril 2018 à mars 2019”, 24 May 2019, available at : https://bit.ly/3KYmkIH, 19.

[5] NCPT, Rapport au DFJP et à la CCDJP relatif au contrôle des renvois en application du droit des étrangers, d’avril 2018 à mars 2019, 24 May 2019, available at : https://bit.ly/3KYmkIH, 19.

[6] Federal Council, Détention administrative de requérants d’asile, 26 June 2018, available in French at: https://bit.ly/2MV0lkZ.

[7] Available in French (and German and Italian) at: http://bit.ly/2wAQPQu.

[8] Federal Supreme Court, Decisions 2C_1052/2016 and 2C_1053/2016, 26 April 2017.

[9] Recommendation No 5. Détention administrative de requérants d’asile : Rapport de la Commission de gestion du Conseil national du 26 juin 2018, available at : http://bit.ly/3XZczww.

[10] UN Committee on the Rights of the Child, Concluding observations on the combined fifth and sixth periodic reports of Switzerland, 22 October 2021, available at: https://bit.ly/3RaCjUQ, 15.

[11] Terre des Hommes, État des lieux sur la détention administrative des mineur.e.s migrant.e.s en Suisse, November 2018, available at: https://bit.ly/3Hcqlpg, 81.

[12] Karin Meier, Eine Stimme für Menschen in Ausschaffungshaft, Reformiert, 4 March 2019, available in German at: https://bit.ly/39TzUXs.