Judicial review of the detention order

Switzerland

Country Report: Judicial review of the detention order Last updated: 14/05/21

Author

Swiss Refugee Council Visit Website

Review of administrative detention (except Dublin detention, as seen below) is regulated under Article 80 FNIA. In fact, Article 80(2) FNIA provides that the legality and appropriateness of detention must be reviewed at the latest within 96 hours by a judicial authority on the basis of an oral hearing. The same occurs with decisions to extend the detention order.

According to Article 80(3) FNIA, the judicial authority may dispense with an oral hearing if deportation is anticipated within 8 days of the detention order and the person concerned has expressed his or her consent in writing. If deportation cannot be carried out by this deadline, an oral hearing must be scheduled at the latest 12 days after the detention order.

According to Article 80(4) FNIA, when reviewing the decision to issue, extend or revoke a detention order, the judicial authority shall also take account of the detainee’s family circumstances and the conditions under which detention is enforced. In no event may a detention order in preparation for departure or detention pending deportation be issued in respect of children or young people who have not yet attained the age of 15. The Court also needs to examine if detention is proportional and if removal could not be achieved through other means.[1]

The detainee may submit a request for release from detention one month after the detention review. The judicial authority must issue a decision on the basis of an oral hearing within 8 working days. A further request for release in the case of detention in preparation for departure (Art. 75 FNIA) may be submitted after one month or in the case of detention pending deportation (Art. 76 FNIA) after 2 months.[2]

The detention order shall be revoked if: the reason for detention ceases to apply or the removal or expulsion order proves to be unenforceable for legal or practical reasons; a request for release from detention is granted; or the detainee becomes subject to a custodial sentence or measure.[3]

Review of Dublin detention is regulated by Article 80a FNIA. It represents an exception since no automatic review is foreseen. In case of detention under a Dublin procedure, the legality and the appropriateness of detention shall be revised by a judicial authority only at the request of the detainee and in a written procedure (both the request and the exam are done in writing). This review may be requested at any time. According to a ruling of the Federal Supreme Court of 2 May 2016, the review should in principle be conducted within 96 hours after the request.[4]

Detention under the Dublin procedure can no longer be ordered by SEM, which means that all review procedures are now carried out at the cantonal level (before 1 March 2019, the Federal Administrative Court was competent for the judicial review of Dublin detention when ordered by SEM). Again, cantonal practice is very diverse with regard to judicial review. National legislation provides for important safeguards, but compliance with these safeguards is not guaranteed in all cantons. Each canton organises its system of judicial review, and the practice of cantonal Courts is very diverse. It is not possible to provide an overview of all cantonal practices here.

The Swiss Refugee Council has observed that in cases of Dublin detention, the requirements by Swiss law as well as Article 28 of the Dublin III Regulation have not always been met, at least until the Federal Supreme Court and Federal Administrative Courts set down some ground rules (see Grounds for Detention: Dublin Procedure). The Swiss Refugee Council also suspects that detainees in the Dublin procedure are insufficiently informed that they must themselves ask in written form for a review of the detention. To help remedy this, the NGO has drafted a basic form in four languages with which to ask for a review of the Dublin detention order.[5] Another challenge, however, remains the distribution of this leaflet to the relevant persons.

During 2020, a year characterised by COVID-19, several detained persons have been released following a decision of cantonal administrative authorities, a judicial review procedure or a request for release. The ground for release was that enforcement of removal was not foreseeable due to the pandemic and related travel limitations. In some cantons, all detained persons were released at the beginning of the pandemic. This was the case in Basel-Stadt and in the French-speaking cantons of Geneva, Vaud and Neuchâtel. Some cantons released Dublin detainees only, while some other released detainees without criminal records but maintained in detention those with criminal records, a questionable practice since administrative detention is not related to criminal prosecution.

Following the first months of the pandemic, most cantons have started to detain people again in view of removal. The question of foreseeability of removal remains crucial since the enforcement of removals encounters many obstacles due to the pandemic and related travel restrictions. The way of examining the question of foreseeability of removal varies consistently between cantons. Following appeals introduced against cantonal courts, the Federal Supreme Court has corrected the cantonal evaluation in several individual cases, stating that detention pending deportation was unlawful since removal was not enforceable in foreseeable future.[6] The Court has also 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.[7]

The SEM does not dispose of statistics on the number of release requests filed or the number of judicial reviews required by asylum seekers in detention under the Dublin procedure.[8]

 

 

[1]        See decisions of the Federal Supreme Court 2C_1063/2019 of 17.01.2020, c. 5.3, with references to 2C_263/2019 of 27.06.2019, c. 4.3.2 and 2C_466/2018 of 21.06.2018, c. 5.2.

[2]        Article 80(5) FNIA.

[3]        Article 80(6) FNIA.

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

[5]        The form can be found in English, French and German, available at: http://bit.ly/2T9jhke.

[6]        For example in judgements 2C_386/2020 of 9.06.2020 and 2C_414/2020 of 12.06.2020.

[7]        Judgement of the Federal Supreme Court C_408/2020 of 21.07.2020.

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

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