Grounds for detention

Switzerland

Country Report: Grounds for detention Last updated: 19/04/22

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A general remark about the competence for ordering detention orders is necessary before outlining the different types of administrative detention existing under Swiss law. Since the entry into force of the new asylum procedure on 1 March 2019, only the cantons are competent to order detention, except from the detention of asylum seekers in airport transit zones.[1] Previously, the SEM could order detention in case the removal decision was issued in a federal reception centre (only in case of Dublin decision and/or if the enforcement of removal was imminent). The new legal provisions in force since March 2019 foresee that, in case of persons staying in federal asylum centres (Article 76(1)(b)(5) FNIA), the canton where the centre is located is responsible for ordering detention. If in accordance with Article 46(1bis) of the Asylum Act a canton other than the canton where the centre is located is responsible for executing removal, that canton is also responsible for ordering detention.[2]

The detention of persons at the airport is an exception, since the SEM continues to be the authority in charge of deciding whether or not to allow asylum seekers entry into Swiss territory.

 

Detention at the airport

When an asylum seeker applies for asylum at the airport of Geneva the Swiss authorities must decide whether to allow his/her entry into Switzerland within 20 days.[3] In Zurich, the airport procedure was modified at the beginning of the COVID-19 pandemic and people are directed to a federal asylum centre. If entry into Swiss territory is allowed, the asylum seeker is assigned to a canton and is entitled to regular reception conditions. If entry is refused, the SEM should provide persons with a place of stay and appropriate accommodation until they leave the country.[4] While the airport procedure is ongoing, asylum seekers are confined in the transit zone. Asylum seekers may be held at the airport or exceptionally at another location for a maximum of 60 days in total,[5] if entry cannot be granted immediately.

The aim of detention at the arrival is to prevent unauthorised entry. According to the Federal Supreme Court and to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), it is an uncontested deprivation of liberty, in line with the Amuur v. France ruling of the ECtHR.[6] This type of confinement is based on the assumption that the persons have not yet entered Switzerland.[7] From the moment in which entry into the country has been established, holding in transit zones is no longer permitted under this legal title. The Federal Administrative Court, however, goes further and considers it possible to carry out an arrest to prevent illegal entry even within a certain time and space after the border has effectively been crossed.[8] Yet this brings with it a new difficult question of demarcation.

 

Temporary detention

So-called “temporary detention” for identification purposes (as far as the person’s personal cooperation is required) or for the purpose of issuing a decision in connection with his or her residence status may be ordered according to Article 73 FNIA for a maximum of 3 days. In 2021, 374 persons were temporarily detained under Article 73 FNIA (compared to 420 in 2020). Out of this total number of persons, 253 were asylum seekers, of which 111 were Dublin cases. The average length of temporary detention under Article 73 FNIA was 1 day.[9]

 

Detention in preparation for departure

Detention in preparation for departure may be ordered during the asylum procedure according to Article 75 FNIA to facilitate the conduct of removal proceedings or criminal proceedings. It can be ordered on the following grounds, where persons:[10]

  • refuse to disclose their identity, submit several applications for asylum using various identities or repeatedly fail to comply with a summons without sufficient reason or ignore other instructions issued by the authorities in the asylum procedure;
  • leave an area allocated to them in accordance with a restriction order or enter an area they are prohibited from entering;[11]
  • enter Swiss territory despite a ban on entry and cannot be immediately removed;
  • were removed and submitted an application for asylum following a legally binding revocation of their residence or permanent residence permit or a non-renewal of the permit due to violation of or representing a threat to the public security and order or due to representing a threat to internal or external security;
  • submit an application for asylum after an expulsion ordered by the Federal Office for Police to protect internal or external national security;
  • stay unlawfully in Switzerland and submit an application for asylum with the obvious intention of avoiding the imminent enforcement of a removal or expulsion order. Such an intention shall be suspected if it were possible and reasonable to file the asylum application earlier and if the application is submitted in close chronological relation to detention, criminal proceedings, the implementation of a penalty or the issue of a removal order;
  • seriously threaten other persons or considerably endanger the life and limb of other persons and are therefore being prosecuted or have been convicted; or
  • have been convicted of a felony.

In practice, only persons lodging an asylum application in prison or detention facilities or prior to entering Switzerland at Geneva or Zurich airports are likely to be detained during the whole procedure (yet in the latter case under another legal provision, see above). Asylum seekers are rarely detained during the asylum procedure, which mostly occurs in cases where they have committed criminal offences. According to the SEM, in 2021, there were 36 orders for detention in preparation for departure, of whom 21 were released and 12 were deported.  [12]

 

Detention pending deportation

Detention pending deportation according to Article 76 FNIA is applicable to persons who have received a negative decision as well as a dismissal without entering in the substance of the case (NEM/NEE), for example in case removal to a Safe third country has been ordered.

Once the SEM has issued a decision (expulsion or removal order), cantonal authorities can order a so-called detention pending deportation (“Ausschaffungshaft”) to ensure the enforcement of the decision. This can occur also before the entry into force of the decision.[13] A person can also be kept in detention if he or she is already in detention in preparation for departure according to Article 75 FNIA.[14] In addition, according to Article 76 FNIA, detention pending deportation can be ordered if persons:

  1. refuse to disclose their identity, submit several applications for asylum using various identities or repeatedly fail to comply with a summons without sufficient reason or ignore other instructions issued by the authorities in the asylum procedure;
  2. leave an area allocated to them in accordance with a restriction order or enter an area they are prohibited from entering;[15]
  • enter Swiss territory despite a ban on entry and cannot be immediately removed;
  1. stay unlawfully in Switzerland and submit an application for asylum with the obvious intention of avoiding the imminent enforcement of a removal or expulsion order. Such an intention shall be suspected if it were possible and reasonable to file the asylum application earlier and if the application is submitted in close chronological relation to detention, criminal proceedings, the implementation of a penalty or the issue of a removal order;
  2. seriously threaten other persons or considerably endanger the life and limb of other persons and are therefore being prosecuted or have been convicted;
  3. have been convicted of a felony;
  • are suspected of seeking to evade deportation, according to serious indications, in particular because they fail to comply with the obligation to cooperate with the authorities;
  • based on their previous conduct, it can be concluded that they will refuse to comply with official instructions;
  1. are issued with a removal decision in a federal centre and enforcement of the removal is imminent.

According to case law of the Federal Supreme Court, a risk of absconding can be found to exist where the person has already disappeared once, he/she attempts to hinder the enforcement of removal by giving manifestly inaccurate or contradictory information, or if he/she makes it clear, by his/her statements or behaviour, that he/she is unwilling to return to his country of origin.[16] As expressly provided for in Article 76(1)(b)(3) FNIA, there must be concrete elements to this effect. The mere fact of not leaving the country within the time limit set for this purpose is not sufficient, taken individually, to admit a ground for detention.[17]

In practice, the assessment of the risk of absconding leaves cantonal authorities a large discretion to order this type of detention. Case law has assessed a risk of absconding in cases where a foreign national has already disappeared, hampers the removal proceedings by providing false or contradictory information, or even if he or she states unwillingness to return.[18] Like for all the other types of detention, detention must be proportional and deportation must be foreseeable in order to be lawful.[19]

According to SEM, in 2021, there were 1,098 persons detained pending deportation (compared to 1,163 in 2020). Detention pending deportation ended with deportation in 79% of cases.[20]

A special provision concerning detention pending deportation exists in the FNIA for cases in which the enforcement delay is due to lack of cooperation in obtaining travel documents.[21] This specific type of detention, regulated under Article 77 FNIA, can be used both with regard to asylum seekers and other foreigners, after the deadline for leaving has expired, and cannot exceed 60 days. It is hardly ever used: 13 cases have been reported in 2021. This type of detention has resulted in deportation in 62% of cases.[22]

 

Detention in the Dublin procedure

According to Article 76a FNIA, a person in the Dublin procedure can be detained if:[23]

  • There are specific indications that the person intends to evade removal;
  • Detention is proportional; and
  • Less coercive alternative measures cannot be applied effectively.[24]

Article 76a FNIA provides a list of the specific indications that can lead to the assumption that the person intends to evade removal. These are the following:

  • The person concerned disregards official orders in the asylum or removal proceedings, in particular by refusing to disclose their identity, thus failing to comply with his or her duty to cooperate or by repeatedly failing to comply with a summons without sufficient excuse.
  • His or her conduct in Switzerland or abroad leads to the conclusion that he or she wishes to defy official orders.
  • He or she submits two or more asylum applications under different identities.
  • He or she leaves the area that he or she is allocated to or enter an area from which he or she is excluded.
  • He or she enters Swiss territory despite a ban on entry and cannot be removed immediately.
  • He or she stays unlawfully in Switzerland and submits an application for asylum with the obvious intention of avoiding the imminent enforcement of removal.
  • He or she seriously threatens other persons or considerably endangers the life and limb of other persons and is therefore being prosecuted or have been convicted.
  • He or she has been convicted of a felony.
  • He or she denies to the competent authority that he or she holds or has held a residence document and/or a visa in a Dublin State or has submitted an asylum application there.
  • If the person resists boarding a means of transport for the conduct of a Dublin transfer, or prevents the transfer in another way by his or her personal conduct.

Different aspects of these provisions are problematic, especially the manner in which the risk of absconding is defined, as well as the maximum duration of detention (see section on Duration of detention), which are not in line with Article 28 of the Dublin III Regulation. The latter was clarified by the Federal Supreme Court in a judgement of 11 March 2022 concerning an Algerian national, who was detained for more than six weeks after the order to return him to Belgium had already become legally binding in the Dublin procedure. The Court stated clearly that the detention provision in Swiss law in this regard is to be interpreted in accordance with the requirements of the Dublin III Regulation in line with the practice of the CJEU.[25]

As a non-EU member state, Switzerland has no possibility to access the CJEU to clarify these issues. This is problematic especially from the perspective of the individual asylum seeker, as there is no effective remedy to contest the violation of EU law by Swiss law.

The Federal Supreme Court set down important principles in a leading case decision of May 2016:[26]

  • A person may not be detained for the sole reason that he or she previously applied for asylum in another Dublin State. There must be an individual examination of specific indications for a high risk of absconding;
  • If requested, the legality of the Dublin detention must in principle be reviewed by a judge within 96 hours from the moment of the written request of the detainee; and
  • There must not be high formal requirements for the request to have the legality of the detention reviewed.

The Federal Administrative Court has also lifted detention decisions made by the SEM in Dublin cases on numerous occasions. It stated that the SEM had violated the person’s right to be heard by not examining in an individual manner whether there was a high risk of absconding.[27] It also stated that when examining proportionality, a restriction order on the territory of the reception centre could be an alternative to detention.[28] Appeals to the Federal Administrative Court are not possible anymore since federal authorities (SEM) are not competent anymore in the ordering of detention after 1 March 2019. Appeals must be done at the cantonal level first, and only then to the Federal Supreme Court.

According to the SEM, in 2021, there were 1,037detention orders concerning detention under the Dublin procedure (compared to 700 in 2020). Detention under the Dublin procedure has ended with the enforcement of transfer in 67% if cases.[29]

 

Coercive detention

Coercive detention under Article 78 FNIA can be ordered when a legally enforceable removal or expulsion order cannot be enforced due to the personal conduct of the foreigner. It is aimed to persuade the person to change his or her behaviour in cases where the enforcement of removal is impossible without his or her cooperation.[30] This is highly problematic when considering Article 15(4) of the Return Directive, stating that when a reasonable prospect of removal no longer exists, detention ceases to be justified and the person concerned shall be released immediately. In a recent case in relation with the COVID-19 pandemic, the Federal Supreme Court has clarified that coercive detention is only lawful when removal is objectively possible in foreseeable future, the level of cooperation of the foreigner being irrelevant in this evaluation.[31]

In 2021, there were 18 cases coercive detention (compared to 30 in 2020), in 8 cases coercive detention has ended with deportation.[32]

 

 

 

[1] Article 80(1) and 80 (1bis) Foreign Nationals and Integration Act (FNIA).

[2] Article 80(1), 80(1bis) and 80a(1), in combination with Article 46(1bis) of the Asylum Act.

[3] For details on the airport procedure, see section Border Procedure.

[4] Article 22(3) AsylA.

[5] Article 22(5) AsylA. Other locations are not used in practice.

[6] Federal Supreme Court, Decision BGE 129 I 139, 27 May 1997, para. 4.4; CPT, Rapport au conseil fédéral suisse relative à la visite effectuée en Suisse par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants du 24 septembre au 5 octobre 2007, para 93.

[7] Federal Council, Message concernant la modification de la loi sur l’asile, de la loi fédérale sur l’assurance-maladie et de la loi fédérale sur l’assurance-vieillesse et survivants du 4 septembre 2002.

[8] Federal Administrative Court, Decision D-6502/2010, 16 September 2010.

[9] Information provided by the SEM, 1 April 2022.

[10] Article 75(1) FNIA.

[11] Article 74 FNIA.

[12] Information provided by the SEM, 1 April 2022.  

[13] Federal Supreme Court, Decision ATF 140 II 409, c. 2.3.4; 121 II 59, c. 2a, 122 II 148, c. 1.

[14] Article 76(1)(a) FNIA.

[15] Article 74 FNIA.

[16] Federal Supreme Court, Decisions 2C_256/2013, c. 4.2; ATF 130 II 56 c. 3.1; 2C_1139/2012, c. 3.2.

[17] Federal Supreme Court, Decision 2C_142/2013, c. 4.2.

[18] Federal Supreme Court, Decision ATF 140 II 1, 9 December2013, c. 5.3.

[19] Article 96 FNIA, Article 15(1) of the Return Directive.

[20] Information provided by the SEM, 1 April 2022.

[21] Article 77 FNIA.

[22] Information provided by the SEM, 1 April 2022.

[23] Article 76a FNIA.

[24] The principles of necessity (absence of a less coercive measure) and proportionality are valid for the other types of detention as well, although they are clearly stated only for detention under the Dublin procedure.

[25] Federal Supreme Court, Decision 2C_610/2021, 11 March 2022, press release in German available at: https://bit.ly/3r6sWtJ.

[26] Federal Supreme Court, Decision 2C_207/2016, 2 May 2016.

[27] Federal Administrative Court, Decisions D-2925/2016, 17 May 2016; E-2850/2016, 13 May 2016; D-2484/2016, 27 April 2016.

[28] Federal Administrative Court, Decisions D-2484/2016, 27 April 2016 and D-1626/2016, 22 March 2016.

[29] Information provided by the SEM, 1 April 2021.

[30] Federal Supreme Court, Decision ATF 133 II 97, 2 April 2007, c. 2.2.

[31] Federal Supreme Court, DecisionC_408/2020, 21 July 2020.

[32] Information provided by the SEM, 1 April 2022.

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