Author
National law provides for the possibility to refuse (completely or partially), reduce or withdraw social benefits under explicit and exhaustively listed conditions. General restriction conditions of social benefits are foreseen in Article 83(1) AsylA, which provides for partial or total withdrawal of material reception conditions where the asylum seeker:
- Has obtained them or attempted to obtain them by providing untrue or incomplete information;
- Refuses to give the competent office information about their financial circumstances, or fails to authorise the office to obtain this information;
- Does not report important changes in his or her circumstances;
- Obviously neglects to improve his or her situation, in particular by refusing to accept reasonable work or accommodation allocated to him or her;
- Without consulting the competent office, terminates an employment contract or lease or is responsible for its termination and thereby exacerbates his or her situation;
- Uses social benefits improperly;
- Fails to comply with the instructions of the competent office despite the threat of the withdrawal of social benefits;
- Endangers public security or order;
- Has been prosecuted or convicted of a crime;
- Seriously and culpably fails to cooperate, in particular by refusing to disclose his or her identity; or
- Fails to comply with the instructions from staff responsible for the proceedings or from the accommodation facilities, thereby endangering order and security.
Restriction patterns are related to the obligation of the asylum seeker to collaborate with the authorities for the establishment of the facts (identity, financial situation, etc.), to reduce reliance on social benefits by being ready to participate in the economic life, to reduce living expenditures, and to conform with Swiss law generally.
Emergency aid is however an unconditional right for everyone present on Swiss territory and unable to provide for themselves. The exclusion from social assistance has no impact on the entitlement to emergency aid. This means that every asylum seeker (even dismissed or rejected) should find an accommodation place during their stay in Switzerland and be able to provide for their own (basic) needs. However, reception conditions are very critical under the emergency aid scheme, with several cantons making use of underground civil protection centres (so-called bunkers) originally conceived for the protection of civil population in case of armed conflict or other types of emergency but are used as emergency aid shelters.
The Asylum Act also provides for the possibility to exclude persons from a federal asylum centre as a disciplinary sanction, when an asylum applicant has endangered others in the centre, disturbed the peace or refused to obey staff orders. The exclusion can however not exceed 24 hours and is subject to a written decision made by SEM. Other sorts of disciplinary sanctions exist in the federal centres, such as denial of exit permits, elimination of pocket money or a ban on entering specific spaces.[1]
Before any reduction or withdrawal is ordered, an assessment of proportionality is made and the subsistence minimum has to be considered. The basic need is defined as “enforcement legal subsistence minimum” (betreibungsrechtliches Existenzminimum) and differs in each canton.
Special centres for uncooperative asylum seekers
Article 24a AsylA is the legal basis for the creation of special centres for uncooperative asylum seekers. It states that asylum seekers who endanger public security and order or who by their behaviour seriously disrupt the normal operation of the federal asylum centres may be accommodated by the SEM in special centres that are set up and run by the SEM or by cantonal authorities. Although applications cannot be lodged in those centres, procedures are carried out according to the same rules than in the usual federal asylum centres. The only centre of this type ever opened is situated in Les Verrières, Canton of Neuchâtel and has a capacity of 20 places, on average, 8 persons were accommodated in this centre in 2022.[2] According to the information of the SEM, discussions for a possible second centre for uncooperative asylum seekers are ongoing.[3]
According to the law, the decision to send someone to a special centre is made either by federal or cantonal authorities. In its statement, the SEM indicated that only men would be placed in such centres.[4] The decision to place a person in a special centre must respect the principle of proportionality. According to SEM practice, the placement in a special centre is ordered for a period of 14 days and can be prolonged to a maximum of 30 days.[5] Although the law did not foresee a separate remedy against such decision, the Federal Administrative Court has ruled that it must be possible to contest such decision within 30 days.[6] In the same judgment, the Court stated that placement in a special centre constitutes a significant restriction of liberty but not deprivation of liberty.
Grounds for assignment to a special centre are defined in Article 15 AO1. According to this provision, a person can be assigned to a special centre if they are in a federal asylum centre and endanger public security and order or who by their behaviour seriously disrupt the normal operation of the federal asylum centre. A danger to public security and order is assumed if there are concrete indications that the behaviour of the asylum seeker will with great probability lead to a breach of public security and order.
A serious disruption of the normal operation of the federal asylum centre is assumed in the following two situations:
- First, if the asylum seeker seriously violates the house rules of the centre, especially if they have weapons or drugs, or if they repeatedly disregard a ban to leave the centre.
- Second, if the person defies the instructions for behaviour by the head of the centre or their deputy and by this behaviour namely repeatedly disturbs, threatens or endangers the staff or other asylum seekers.
[1] Article 25(1)(e) Ordinance of the FDJP on the management of federal centres and accommodation at airports.
[2] Data provided by the SEM, 1 May 2023.
[3] Information provided by the SEM, 17 May 2023.
[4] SEM, ‘Asile: ouverture du centre spécifique de la Confédération aux Verrières’, 3 December 2018, available in French (and German and Italian) at: https://bit.ly/2RwVZlr.
[5] SEM, Manuel Asile et Retour, chapter C1; 2.2.2.3; see also PLEX (Plan d’exploitation Hébergement), Annex 2, cited in a Decision of the Federal Administrative Court (F-1389/2019, 20 April 2020, para 7.10).
[6] Federal Administrative Court, Decision F-1389/2019, 20 April 2020.