Obstacles to Removal
The rejection of an asylum application does not automatically mean that the person has to leave Switzerland.
If it is not permitted or not reasonable or not possible to remove someone, he or she can stay in Switzerland even without having been granted asylum. In their examination of the asylum application, the authorities decide in two steps.
- First they decide whether to grant asylum under the Swiss Asylum Act (AsylA).
- Second they decide whether there are legal obstacles that render the enforcement of a removal order impossible under the Federal Act on Foreign Nationals (Foreign Nationals Act (FNA)).
The Foreign Nationals Act (FNA) cites three reasons as to why someone cannot be removed but is instead granted temporary admission. This action means a longer-term stay in Switzerland for the individuals temporarily admitted. The duration of their stay does not differ statistically from that of individuals granted asylum. These three reasons (in accordance with Art. 83 FNA) are as follows:
1. Enforcement of removal is not permitted (Art. 83 para. 3 FNA).
Enforcement is not permitted if Switzerland’s obligations under international law prevent the return of an asylum seeker. These obligations exist as a result of
- the Geneva Convention relating to the Status of Refugees (Geneva Refugee Convention GRC),
- the European Convention on Human Rights (ECHR),
- the United Nations Convention against Torture (CAT), and
- the United Nations International Covenant on Civil and Political Rights (ICCPR).
For minor asylum seekers,
is also relevant in this context and was ratified by Switzerland.
Ban on refoulement
The most important guarantee of this ban is that no person is allowed to be returned to a country where he or she is threatened with persecution, torture, inhuman or degrading treatment or punishment. Removal can also be deemed unlawful if it results in the forced separation of a family or if it pertains to a seriously ill person.
This guarantee in its entirety is designated as the principle of non-refoulement. If there is a threat of a breach of the ban on refoulement, the enforcement of the removal order is impermissible.
2. Enforcement of removal is not reasonable (Art. 83 para. 4 FNA).
The unreasonableness of the enforcement of a removal order is based on humanitarian reasons. It is highly significant in actual practice but is controversial. Enforcement may be unreasonable for asylum seekers if they are specifically endangered by situations such as war, civil war, or general violence in their native country or country of origin. Enforcement may also be unreasonable if a medical emergency exists in the country of origin.
Where vulnerable persons are involved, the authorities must (additionally) investigate whether the removal is unreasonable in each individual case. All relevant social, economic and humanitarian aspects must be taken into account in the determination of reasonableness. In actual practice, factors such as the existence of a social network or of specific medical treatment options in the country of origin are examined especially closely.
In this context, it is vital that asylum seekers quickly disclose any medical problems. It is best if they do so as soon as possible after filing the asylum application but at the latest at the hearing conducted by the State Secretariat of Migration (SEM). Medical reasons can then be taken into account during the examination of the application. Medical grounds can be raised later but the requirements for establishing proof are more stringent (Art. 26 bis AsylA).
The Federal Council can designate native countries or countries of origin to which return is reasonable (Art. 83 paras. 5 and 6 FNA), see Safe Countries List of the Federal Council (in French). In such cases, the asylum seekers must point out why return is not reasonable in their own individual cases.
3. Enforcement of removal is not possible (Art. 83 para. 2 FNA).
Enforcement is not possible if “technical” circumstances prevent the return. Technical obstacles exist if no means of transportation are available to go into the country of origin or if the native country did not issue the person any travel documents or does not want to permit him or her to enter. Removal is not deemed impossible, however, if the person to be removed refuses to leave Switzerland or if the Swiss authorities do not manage to deport the dismissed asylum seeker (Art. 83 para. 7 lit. c FNA).
Obstacles to Removal
If there is an obstacle to the enforcement of removal, the State Secretariat of Migration (SEM) shall order temporary admission (Art. 83 para. 1 FNA) and the person receives an F-Permit. This scenario occurs quite often in actual practice.
Temporary admission on grounds that enforcement of removal is impossible or unreasonable is not granted if the person ordered removed
- has been sentenced to a long-term custodial sentence;
- has been made subject to a criminal law measure;
- has seriously or repeatedly violated public security and order in Switzerland or abroad;
- has represented a threat to security; or
- has made his or her removal impossible due to his or her own conduct (Art. 83 para. 7 FNA).
F-Permit is limited in time
The F-Permit is issued for one year at a time and must then be renewed. The State Secretariat for Migration (SEM) periodically examines whether enforcement is still not permitted, not reasonable or not possible (Art. 84 para. 1 FNA). These requirements might no longer be met, for example, if the situation in a country engaged in civil war greatly improves and risks no longer exist. If this happens, the SEM can revoke temporary admission.
If no obstacles to removal are identified, the SEM issues the final rejection of the asylum application and orders the removal (Art. 84 para. 2 FNA). In this case, dismissed asylum seekers must leave Switzerland. The SEM sets a deadline by which they must leave Switzerland. If they fail to comply with this deadline, the competent cantonal police are responsible for deporting them to their country of origin (Art. 69 para. 1 FNA).