Freedom of movement

Switzerland

Country Report: Freedom of movement Last updated: 14/05/21

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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.

Following the 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 centres of Boudry and Chevrilles where asylum seekers are allowed to return to the asylum centre until 7pm, in Chiasso and Pasture until 6pm, and in Basel 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]

As a consequence of the COVID-19 pandemic, asylum seekers can be set in quarantine and isolated in single rooms when they are tested positive, have symptoms or have had contacts with infected persons. In a few cases, whole reception centres have been set in quarantine for approximately two weeks without any possibility to exit the centre for the residents (staff being able to enter and exit though). According to information available to the Swiss Refugee Council, this has been the case in Giffers and Flumenthal. The centre of Zurich and the centre for unaccompanied minors in Basel were also set in quarantine for some time. Furthermore, it was reported that the possibility to spend the weekend outside has been suspended in several federal asylum centres, asylum applicants being obliged to spend the night in the centre during weekend. The Swiss Refugee Council considers this provision unlawful since it has no legal basis and contradicts the Ordinance of the FDJP on the management of federal reception centres[8], as well as inadequate to prevent infections.

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)[9] or placement in a special centre (Les Verrières).[10] 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.[11]

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 for protecting 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.[12] In its report published in 2021, the NCPT noted that the use of such “reflection rooms” had been regulated in internal documents. In particular, the maximum length was set to two hours and the prohibition to use it for unaccompanied minors was decided. However, regulation on a formal, legal level is still insufficient.[13] According to data provided by SEM to the NCPT, between April 2019 and March 2020, use of this room was registered 39 times in Kreuzlingen, 33 times in Chiasso, 22 times in Boudry and once in Kappelen.

Restriction vs. deprivation of liberty

In a 2017 report to the Commission Federal against Racism, Kiener and Medici 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 Center 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] The cell phone ban in the centres has been lifted since in November 2017.

The study concluded that the 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. So 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 has 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.[18] 

Centres in remote locations

The location of some centres is very remote. A good example are the Boudry and Giffers/Chevrilles federal centres, which are 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. 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.[19] 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.[20]

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 he or she was allocated to or not to enter a specific area:

  1. In case of threat to public security and order. This measure is intended to serve in particular to combat illegal drug trafficking;
  2. 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;
  3. 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).

This has been practiced in certain cantons such as Zurich in the case of rejected asylum seekers under the emergency aid regime.[21] Another example is a case in the canton of St. Gallen, where a young male asylum seeker was considered as a threat to public order and security and therefore was issued a restriction order which forbid him to leave the canton. This order was issued without any concrete accusation because Swiss Federal Intelligence Service saw stated a possible risk that the person might be a Kurdish activist.[22]

Since 1 March 2019, a new paragraph (1bis) was inserted to Article 74 FNIA regarding the special centres for uncooperative asylum seekers: The competent cantonal authority shall require a person who is accommodated in a special centre under Article 24a AsylA3 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.[23]

The SEM was not able to provided statistical data on the number of restriction and exclusion orders issued by cantons in 2020.[24]

 

 

[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 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, not publicly available.

[7] Article 23 Ordinance of the FDJP.

[8] Article 17(3) Ordinance of the FDJP.

[9] Usually a place to sleep is provided in containers placed outside the centre.

[10] Article 25 Ordinance of the FDJP.

[11]  Article 26 Ordinance of the FDJP.

[12] NCPT, Report 2014, 11, para 39, available at: https://bit.ly/3nGLpsP; Report 2018, p. 33, para 122, available at: https://bit.ly/2KPfOa8.

[13] NCPT, Report on federal asylum centres 2019-2020, January 2021, available at: https://bit.ly/3jEAb72, p. 21.

[14] Regina Kiener and Gabriela Medici, ‘Asylsuchende im öffentlichen Raum’, Rechtsgutachten im Auftrag der Eidgenössischen Kommission gegen Rassismus EKR, February 2017.

[15] Swiss Center of Expertise in Human Rights (SCHR), ‘Freiheitsentzug und Freiheitsbeschränkung bei ausländischen Staatsangehörigen – Dargestellt am Beispiel der Unterbringung von Asylsuchenden in der Schweiz‘, written by Künzli Jörg/Frei Nula/Krummen David, 21 August 2017.

[16] Article 16 Ordinance of the FDJP.

[17] NCPT, Report on federal asylum centres 2019-2020, p. 37.

[18]  Federal Administrative Court, judgement F-1389/2019 of 20 April 2020. See also News of the Swiss Refugee Council, available (in French) at: https://bit.ly/36bO5bf.

[19]  ECtHR, Stanev v. Bulgaria, Application No 36760/06, Judgment of 17 January 2012.

[20] 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. Page 8, ch. 4.1.5.

[21] Federal Supreme Court, Decision 2C_287/2017, 13 November 2017.

[22] Newspaper Article of 6 June 2019, available (in German) at: https://bit.ly/2PiqIV0.

[23] Article 74(3) FNIA.

[24]According to information provided by the SEM on 27 April 2021, no such data is available.

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