Author
Maximum duration set by law
Altogether, detention can be ordered for a maximum of 6 months and it can be extended for a further period of up to 12 months where the person does not cooperate with the authorities.[1] Therefore the maximum period for detention under Articles 75, 76 and 78 FNIA is 18 months as foreseen in the Return Directive. When a person is released and detained again the duration is summed up, unless he or she has left the national territory.
For children between 15 and 18, the maximum period of detention is 6 months and may be extended by up to 6 months, thereby totalling 12 months.[2]
Detention under Article 76(1)(b)(5) can last a maximum of 30 days,[3] while detention under Article 77 cannot exceed 60 days.[4]
For detention in the Dublin procedure, there are specific rules regarding duration.[5] The person concerned may remain or be placed in detention from the date of the detention order for a maximum duration of:
- Seven weeks while preparing the decision on responsibility for the asylum application; this includes submitting the request to take charge to the other Dublin State, waiting for the response or tacit acceptance, and drafting and giving notice of the decision;
- Five weeks during a remonstration procedure;
- Six weeks to ensure enforcement from notice being given of the removal or expulsion decision or the date on which the suspensive effect of any appeal against a first instance decision on removal or expulsion ceases to apply and the transfer of the person concerned to the competent Dublin State.
In addition, the law foresees the possibility to detain the person if he or she refuses to board the means of transport being used to effect the transfer to the competent Dublin State, or if he or she prevents the transfer in any other way through his or her personal conduct. In that case, he or she can be detained for another 6 weeks. The period of detention may be extended with the consent of a judicial authority if the person concerned remains unprepared to modify their conduct. The maximum duration of this period of detention is three months.
Some of these provisions actually violate the Dublin III Regulation. Indeed, the maximum duration of detention under the Dublin procedure exceeds that foreseen in Article 28 of the Dublin III Regulation. The detention served under the Dublin regime will be deduced from the total maximum detention period of 18 months.
Duration of detention in practice
In practice, the average duration varies according to the type of detention:
| Average duration of detention (days) per type of detention: 2021 | Overall | Only asylum cases |
| Temporary detention (Article 73 FNIA) | 1 | Not available |
| Preparatory detention (Article 75) | 23 | Not available |
| Detention pending deportation (Article 76) | 28 | Not available |
| Detention in the Dublin procedure (Article 76a) | 24 | Not available |
| Detention pending deportation in order to organise travel papers (Article 77) | 30 | Not available |
| Coercive detention (Article 78) | 126 | Not available |
| Detention at the airport transit zone | Not available | Not available |
Source: SEM, 1 April 2022.
In addition, the use and duration of detention varies considerably among the cantons.
In 2015, the UN Committee against Torture stated in its recommendations that Switzerland must apply detention only as a measure of last resort, especially regarding unaccompanied children, and for a period as short as possible.[6] The report of the Parliamentary Control of Administration refers to significant differences in the ways cantonal authorities interpret the principles of celerity and proportionality, the findings of 2015 are still relevant today.[7]
[1] Article 79 FNIA.
[2] Ibid.
[3] Article 76(2) FNIA.
[4] Article 77(2) FNIA.
[5] Article 76a(3)-(5) FNIA.
[6] UN Committee Against Torture, Observations finales concernant le septième rapport périodique de la Suisse, 13 August 2015, available at: http://bit.ly/1LuTgEQ, para 17.
[7] Parliamentary Control of Administration, 7547-7549.