Author
Dispersal across cantons
Asylum seekers who have not received a final decision on their application after 140 days as well as asylum seekers assigned to the extended procedure are allocated to one of the 26 Swiss cantons according to a distribution key. The distribution key is laid down in Article 21(1) AO1 and allocates a certain percentage of asylum seekers to each canton according to its population (for example Zurich: 17.8%, Uri 0.4%).
Article 22 AO1 states that the SEM distributes the asylum seekers as equitably as possible among the cantons, taking into account family members already living in Switzerland, nationalities and cases requiring particular care. In accordance with Article 27(3) AsylA, when allocating an asylum seeker to a canton, the SEM shall take into account the legitimate interests of the cantons and the asylum seekers. However, this provision also states that asylum seekers may only contest the decision on allocation to the Federal Administrative Court if it violates the principle of family unity. In practice, the interests of the asylum seekers are hardly taken into account (except for family unity regarding core family members). This system is problematic, as it fails to seize opportunities that would facilitate integration, such as language or further family ties. For example, the allocation strictly according to the distribution key often leads to French speaking asylum seekers being allocated to a German language canton, which makes integration much more difficult.[1] Applications to change one’s canton based on other than (core) family unity grounds are hardly ever successful to the knowledge of the Swiss Refugee Council.
Following allocation to the canton, cantonal authorities become responsible for the provision of material reception conditions. They provide for accommodation in a cantonal centre as well as for social or emergency assistance to all persons present on their territory, whether legally or illegally. They may delegate implementation competences to municipalities.
Cantonal reception conditions are regulated by cantonal legislation and differ significantly from one canton to another. Therefore, the allocation to a canton may result in large inequality in terms of material reception conditions. The type of accommodation facilities, as well as the amount of financial allowance, is specific to each canton. Some cantons are known to be restrictive in terms of reception conditions, or even lacking adapted structures for the needs of vulnerable persons.[2]
Restrictions on freedom of movement
Federal asylum centres
As long as asylum seekers stay in a federal centre,[3] they are subject to the semi-closed regime of all federal asylum centres. Exits are only possible with a written authorisation delivered by the SEM once fingerprints and a photograph of the asylum applicant have been taken.[4] Exit hours are strictly regulated in the ordinance and the general rule allows asylum seekers to go out from 9am to 5pm during the week (from Monday to Friday) and to spend the weekend away, from Friday 9am until Sunday 5pm. SEM may define more extended exit hours in agreement with the commune hosting the federal asylum centre,[5] which is for instance the case in the centre of Boudry where asylum seekers are allowed to return to the asylum centre until 7pm, in Pasture until 6pm, in Altstätten until 5.30pm and in Basel, Zurich and Bern until 8pm.[6]
Asylum seekers are supposed to stay in the centre on days on which they have an appointment regarding their asylum application (with the authorities, the lawyer or the counselling) or regarding their departure. This further applies where they have an appointment with a dentist or doctor, if they are required to participate in maintenance work of the premises, if a transfer to another centre is planned or on the day in which the enforcement of the removal is foreseen.[7]
In case of late arrival or unjustified absence, asylum seekers may be subject to a disciplinary sanction such as being deprived of the possibility to go out on the next day or to access certain areas of the centre. Their pocket money or issuing of public transport tickets can also be cut. Other measures can be the exclusion of the centre for a maximum of 24 hours (during which entry in the centre is not allowed)[8] or placement in a special centre (Les Verrières).[9] The disciplinary measures are communicated orally, only the exclusion from the centre for more than eight hours as well as the allocation to a special centre need to be notified in writing. If the refusal of exiting the centre is ordered for more than 24 hours or more than once, a written decision (which can be appealed) is required. A separate room should be provided to asylum seekers excluded from the centre for more than eight hours or in cases the centre is closed at the time the measure ends.[10]
Some federal centres have a so called “reflection container” or “reflection room”, installed within the entry area of the centre or within a short distance from it. These spaces are intended for emergencies (pending the arrival of the police) to receive recalcitrant asylum seekers for them to calm down and to protect them and others from injures. They are mostly equipped with a surveillance camera. During their visits, the delegations of the National Commission for the Prevention of Torture (NCPT) found that the use and purpose of these containers are not defined in any law or directive. It is thus required that those containers are not used for disciplinary reasons.[11] Since 15 January 2023, the short-term restraint of asylum seekers in security rooms for the purpose of danger prevention has been regulated in the Ordinance of the FDJP on the management of federal reception centres: the person can be restrained only until the arrival of the police and for a maximum of two hours. The restraint of minors under 15 is forbidden.[12] The regulation of this specific kind of restraint is also a subject of the current amendment of Asylum Law that was recently under consultation.[13]
Restriction vs. deprivation of liberty
A report to the Federal Commission against Racism of 2017 concluded that the current regulation of exit hours was too far-reaching in terms of personnel and time (social exchange and employment opportunities are severely restricted; even more so due to the remote location of the centres) and was therefore disproportionate.[14] It would on the contrary be possible to use milder means (obligation to notify when leaving and returning or general initial authorisations), in order to monitor the movements of asylum seekers without impinging on their personal freedom. The Federal Supreme Court has not yet commented on the proportionality of these regulations.
The centres are operated by private providers, which means that there are great management differences in practice. The same legal requirements apply, but the operating rules are different. Based on the legal report, the Federal Commission against Racism stated that interventions by the providers are attributable to the State, which is thus responsible for protecting the fundamental rights of asylum seekers.
A report published in August 2017 by the Swiss Centre of Expertise in Human Rights (SCHR) deals in detail with the question of when certain restrictions on the freedom of movement of asylum seekers associated with accommodation should be classified as detention.[15] The demarcation between restriction of liberty and deprivation of liberty is gradual and depends on the individual case and various factors. The intensity of the intervention can be regarded as a criterion for differentiation. Like the ECtHR, the Federal Supreme Court relies on a combination of temporal and spatial factors. In addition, qualitative criteria are also decisive.
Such criteria could be the existence of reporting obligations, the extent of supervision and surveillance, the organisation of the disciplinary regime or, in particular, the possibility of maintaining social contacts. The latter includes not only the exit hours, but also visiting hours and other communication options. Visiting hours in the federal asylum centres are daily from 2 pm to 8 pm, but visitors are only allowed to enter the centres if they have a relationship to an asylum seeker and with the approval of the personnel.[16] Despite this rule, in practice most federal asylum centres are not provided with a visitors’ room.[17] In the information leaflet of the SEM, the possibility of visits as provided by law is not even mentioned: “Access for asylum seekers only: Federal asylum centres are not open to the public. This is primarily to ensure the privacy of the asylum seekers in our care. Therefore, in addition to the asylum seekers, only employees of our partner organizations have access to the centres: counselors, security personnel, teachers and medical professionals, pastoral counsellors and the employees of the legal representation of asylum seekers.”[18]
The study concluded that accommodation in the reception and processing centres does not reach the intensity level of a deprivation of liberty if the daily possibility to leave the centre is guaranteed and if there are no further restrictions. Thus, although there is no clear definition, we would suggest not to qualify the stay in the ordinary federal asylum centres as de facto detention.
In 2020, the Federal Administrative Court ruled that the placement in a special centre does not constitute deprivation of liberty, despite entailing significant restrictions of personal freedom and freedom of movement.[19]
Remote locations
The location of some centres is very remote. The Boudry and Giffers/Chevrilles federal centres as well as the centre of Les Verrières are, for example, characterised by their isolation. The Boudry centre is located in a complex that includes the asylum processing centre and a psychiatric hospital. It is several kilometres away from the surrounding village and about 15km from the town of Neuchâtel. The waiting and departure centre of Chevrilles is even more isolated. In order to get there by public transport, it is necessary to take a 20-minute bus ride from the city of Fribourg, which costs CHF 7.80. Once arrived in the village of Chevrilles, it still takes a 20-minute walk to reach the centre. There are two buses per hour driving to both centres, and asylum seekers receive every week a single ticket to go to Neuchâtel or Fribourg and 3 CHF of pocket money per day, with the exception of persons from EU/EFTA countries or countries exempt from the visa requirement who do not receive any pocket money.
It is more difficult to distinguish between deprivation of liberty and restriction of liberty in the case of isolated centres, given the lack of possibilities of social contacts with people outside the centre. The location of the centre is decisive for the question of whether restrictions amount to de facto deprivation of liberty. Accommodation on a mountain pass, for example, from where the nearest lively town can only be reached by means of transport that asylum seekers cannot afford, is generally to be considered a deprivation of liberty in accordance with the case-law of the ECtHR.[20] In individual cases, the characteristics of a specific accommodation can lead to difficulties even in the case of less remote centres. Such is the case if, for example, a person’s physical condition makes it more difficult to establish social contacts: this could happen to vulnerable persons such as children, the elderly or physically handicapped persons. Not only social contacts, but also access to legal assistance can be rendered difficult by the location of the centre, leading to significant obstacles in terms of access to an effective legal remedy.
The problem arises in particular with the remote locations of some federal asylum centres, which are usually located in former military facilities outside of larger towns and villages (this is the case of Glaubenberg, for example). According to the Coalition of independent lawyers for the right of asylum, such isolation leads to restrictions on freedom of movement and thus the impossibility of a dignified daily life for those seeking asylum, who are practically denied contact with the outside world, leading to social exclusion. This problem is exacerbated by the precarious financial situation of the people concerned.[21]
In conclusion, even though there is no clear definition, for the purpose of this report the accommodation in some centred with remote locations could be qualified as de facto detention (see Detention of Asylum Seekers).
Restriction and exclusion orders
In addition to the mentioned restrictions on freedom of movement for asylum seekers in general, Article 74 FNIA allows for restriction or exclusion orders. According to this provision, the competent cantonal authority may require a person not to leave the area they were allocated to or not to enter a specific area:
- In case of threat to public security and order. This measure is intended to serve in particular to combat illegal drug trafficking;
- If he or she has a final negative decision and specific indications lead to the belief that the person concerned will not leave before the departure deadline or has failed to observe the departure deadline. This provision could also apply to asylum seekers in the Dublin procedure, as from a perspective of national law they are dismissed asylum seekers;
- If the removal has been postponed due to specific circumstances such as medical reasons. This could also apply to asylum seekers with a Dublin transfer decision.
Restriction orders can have different radius, forbidding to leave the area of a canton, a district/region, or a commune. The measure must be proportional to their aim, especially with regard to the length and rayon (restriction to a commune is usually only admitted for criminal offenders).
According to Article 74 para 1bis FNIA, the competent cantonal authority shall require a person who is accommodated in a special centre under Article 24a AsylA not to leave the area they were allocated to or not to enter a specific area.
Appeals may be lodged with a cantonal judicial authority against the ordering of these measures. The appeal has no suspensive effect.[22]
[1] On this topic see Daniel Auer, Language Roulette? Refugee Placement and its Effect on Labor Market Integration, in a nutshell #4, January 2017, nccr – on the move, available in English at: https://bit.ly/34xhjkf.
[2] These large differences in treatment occur despite a fixed compensation system from the Confederation to the cantons. For details on the costs sharing system, see AO2.
[3] General rules for the federal centres are set up in the Ordinance of the FDJP on the management of federal reception centres in the field of asylum.
[4] Article 17 (1) Ordinance of the FDJP.
[5] Article 17(5) Ordinance of the FDJP.
[6] House rules of the individual centres accessed in 2021, not publicly available.
[7] Article 23 Ordinance of the FDJP.
[8] Usually a place to sleep is provided in containers placed outside the centre.
[9] Article 25 Ordinance of the FDJP.
[10] Article 26 Ordinance of the FDJP.
[11] NCPT, Report 2014, 11, para 39, available in German at: https://bit.ly/3nGLpsP; Report 2018, p. 33, para 122, available in German at: https://bit.ly/2KPfOa8.
[12] Art. 29a Ordinance of the FDJP.
[13] The Swiss Refugee Council has submitted its opinion on the project of law. It is available, in French, at: https://bit.ly/3LA00n5. See also the press release, available at: https://bit.ly/3HIJfFr.
[14] Regina Kiener and Gabriela Medici, ‘Asylsuchende im öffentlichen Raum’, Rechtsgutachten im Auftrag der Eidgenössischen Kommission gegen Rassismus EKR, February 2017.
[15] Swiss Centre of Expertise in Human Rights (SCHR), ‘Freiheitsentzug und Freiheitsbeschränkung bei ausländischen Staatsangehörigen – Dargestellt am Beispiel der Unterbringung von Asylsuchenden in der Schweiz‘, written by Jörg Künzli, Nula Frei and David Krummen, 21 August 2017.
[16] Article 16 Ordinance of the FDJP.
[17] NCPT, Report on federal asylum centres 2019-2020, available in German at: https://bit.ly/3cQJj7k, 37.
[18] Information leaflet available in French (also available in German and Italian) at: https://bit.ly/3j7qxKU.
[19] Federal Administrative Court, Decision F-1389/2019, 20 April 2020. See also News of the Swiss Refugee Council, L’assignation à un centre spécifique ne comporte pas une privation de liberté selon le TAF, 1 Mai 2020, available in French (and German) at: https://bit.ly/36bO5bf.
[20] ECtHR, Stanev v. Bulgaria, Application No 36760/06, 17 January 2012, available at: http://bit.ly/3WK5rDs.
[21] Coalition des juristes indépendant-e-s pour le droit d’asile, Restructuration du domaine de l’asile: Bilan de la première année de mise en œuvre. Available in French at: https://bit.ly/3mJPg7u and in German at: https://bit.ly/34vbKCG, p. 8, ch. 4.1.5.
[22] Article 74(3) FNIA.