Persons whose asylum application was rejected are obligated to leave Switzerland. We are committed our support to ensure that the persons concerned can return to their native country safely and with dignity.
Risks and dangers associated with a return
The question of whether a person can return safely and in dignity begins with the assessment of the situation in his or her country of origin. If no grounds relevant to asylum exist in the individual case and if no need for protection was determined, the real circumstances must be reviewed once again prior to a return. One must ask whether the person is actually guaranteed safety and dignity upon his or her return.
Assessment of situation at any time
When it comes to judging the risks and dangers associated with a return, the assessments of the authorities and courts on the one hand tend to diverge from those of the asylum seekers and other involved parties (e.g., human rights organisations) on the other. It is usually difficult to forecast how the situation will be locally. It must therefore be possible to review the situation again at any time especially if the circumstances in a person’s country of origin have changed.
Application for reconsideration
Legally, one means of doing so is to file an application for reconsideration (or revision); another is to file a second asylum application. In some cases, these applications lead to a reconsideration of the real situation and offer redress. Strict requirements apply as to when a person can file the above applications so that unnecessary repetitions are avoided.
If the State Secretariat for Migration (SEM) finds that no danger exists for the person upon his or her return, the person can file an appeal with the Federal Administrative Court if he or she does not agree with the SEM decision.
Assistance with return and return programs
The Confederation provides return assistance and return programs to support the asylum seekers during the return, whether it is voluntary or ordered by the authorities. For certain potential countries of return, Switzerland has agreed to provide special programs. The objective is to reduce the number of forced deportations.
The cantonal migration authorities are responsible for carrying out the removal procedure on dismissed asylum seekers (Art. 69 FNA). The State Secretariat for Migration (SEM) provides assistance if necessary (Art. 1 to 3 Swiss Ordinance on the Enforcement of the Removal and Deportation of Foreign Nationals (OERDFN)).
If the person concerned does not comply with the order to leave the country, the authorities are entitled to take coercive measures to force the person to leave. The measures must always be proportionate. Details of these measures are regulated in the Foreign Nationals Act (FNA) and in cantonal laws.
Precedence given to voluntary departure
Along with Swiss law, one must also observe the provisions of Schengen law as regards coercive measures when dealing with deportations. The Return Directive is relevant in this context. For all removal measures, the principle of voluntary departure is given precedence (Art. 7 Return Directive). Certain coercive measures can already be taken before a legally binding removal decision is handed down.
a) Detention in preparation for departure
For example, an asylum seeker may be detained for a maximum of six months while a decision on his or her residence status is pending so that he or she cannot elude future removal (Art. 75 FNA). Detention in preparation for departure can also be extended to twelve months. This type of detention is ordered if asylum seekers:
- refuse to disclose their identity, submit several applications for asylum using various identities or repeatedly fail to comply with a summons (Art. 75 para. 1 lit. a FNA);
- leave an area allocated to them or enter an area they were prohibited from entering (Art. 75 para. 1 lit. b FNA);
- enter Swiss territory despite a ban on entry and cannot be immediately removed (Art. 75 para. 1 lit. c FNA);
- submit an application for asylum following a legally binding revocation or a non-renewal of the permit because they represent a threat to public security and order or to internal or external security (Art. 75 para. 1 lit. d FNA);
- submit an application for asylum after expulsion (Art. 75 para. 1 lit. e FNA);
- submit an application for asylum with the obvious intention of avoiding the imminent enforcement of a removal order (Art. 75 para. 1 lit. f FNA);
- seriously threaten other persons or considerably endanger the life and limb of other persons and are therefore being prosecuted or have been convicted (Art. 75 para. 1 lit. g FNA); or
- have been convicted of a felony (Art. 75 para. 1 lit. h FNA).
b) Detention pending deportation
As soon as the SEM has handed down a decision on return or a penal court has decided on expulsion, the cantonal authorities can ensure the enforcement of the decision by ordering detention pending deportation (Art. 76 FNA). Detention pending deportation is allowed if:
- the concerned person is already in detention for departure (Art. 76 FNA);
- there are grounds in accordance with the Foreign Nationals Act (FNA) (Art. 75 para. 1 lit. a,b,c,f,g or h or para. 1 bis FNA) (see above under detention in preparation for departure);
- specific indications lead to the belief that they are seeking to evade deportation (Art. 76 para. 1 lit. b No. 3 FNA);
- their previous conduct leads to the conclusion that they will refuse to comply with official instructions (Art. 76 para. 1 lit. b No. 4 FNA);
- the decision to remove the person concerned is issued in a federal reception centre and enforcement of the removal is imminent (Art. 76 para.1 lit. b No. 5 FNA). In this case, detention is not allowed to exeed 30 days.
Swiss Federal Court rulings also deem detention as unlawful if no steps have been taken for more than two months to enforce the removal order (Federal Court decision 124 II 49).
Detention pending deportation can also be ordered if an enforceable decision has been made, the person has not left Switzerland by the appointed deadline, and the competent cantonal authority has had to obtain travel documents for them. Under these circumstances, detention is not allowed to exceed 60 days (Art. 77 FNA).
c) Detention under the Dublin Procedure
Detention under the Dublin Procedure can be ordered if based on an individual assessment and only if there is a great risk of absconding, detention is proportional and less coercive alternative measures cannot be applied effectively (Art. 28 para. 2 Dublin Regulation and Art. 76 a para. 1 FNA). Detention may be ordered already during the preparatory phase.
According to art. 76a para. 2 FNA in the following circumstances it can be concluded there is a great risk of absconding:
- The person concerned disregards official orders in the asylum or removal proceedings, in particular by refusing to disclose their identity, or by repeatedly failing to comply with a summons without sufficient excuse (let. a).
- The conduct in Switzerland or abroad leads to the conclusion that they wish to defy official orders (let. b). The Federal Supreme Court has however pointed out that the only circumstance that a person has already introduced an asylum request in another European country and has pursued his travel cannot constitute a valid ground justifying the detention (decision FSC 2C_207/2016, 2nd mai 2016).
- The person submits two or more asylum applications under different identities (let. c).
- The person leaves the area that they are allocated to or enter an area from which they are excluded (let. d).
- The person enters Swiss territory despite a ban on entry and cannot be removed immediately (let. e).
- The person stays unlawfully in Switzerland and submits an application for asylum with the obvious intention of avoiding the imminent enforcement of removal (let. f).
- The person seriously threatens other persons or considerably endangers the life and limb of other persons and is therefore being prosecuted or has been convicted (let. g).
- The person has been convicted of a felony (let. h).
- The person denies to the competent authority that they hold or have held a residence document and/or a visa in a Dublin State or have submitted an asylum application there (let. i). However, the Federal Supreme Court has held that the only circumstance that a person has already introduced an asylum request in another European country and has pursued his travel cannot constitute a valid ground justifying the detention (decision FSC 2C_207/2016, 2nd mai 2016).
Maximum duration of Dublin detention art. 76a para. 3 FNA):
- seven weeks while preparing the decision on responsibility for the asylum application (let. a)
- five weeks during proceedings regarding removal of disagreements between Switzerland and the other Dublin State when the question of the responsibility is challenged by them (let. b).
- six weeks to ensure enforcement of removal, from notice being given of the SEM decision or after the decision on appeal of the Federal Administrative Court when suspensive effect has been granted (let. c).
- If a person opposes the transfer, they may be detained for three additional months (al. 4). This circumstance is not foreseen in the Dublin regulation and therefore not in compliance with European law.
Unlike other detention types, Dublin detention is not automatically examined by a court. It is up to the concerned person to submit a written request to review the appropriateness of the detention. The request is free and shall not prejudice the person. A request form can be found here (German, French, Italien, English).
d) Coercive detention
Coercive detention can be ordered if the legally binding removal order cannot be enforced because, for example, the person concerned resists or detention pending deportation is not permitted and a more lenient measure would not lead to the goal (Art. 78 FNA). The intention is to have the person concerned change his or her behaviour. Detention may be ordered for one month and it may be extended by two months with consent of the cantonal judicial authority (Art. 78 para. 2 FNA).
Coercive detention is contrary to Article 15 of the Return Directive, especially paragraph 4. The latter states that the person concerned shall be released immediately “when it appears that a reasonable prospect of removal no longer exists”.
e) Maximum duration of detention
Detention in preparation for departure, detention pending deportation and coercive detention as well as Dublin detention taken together are not allowed to exceed six months. However, the duration of detention can be extended by a maximum of twelve months by order of the cantonal judicial authority – but for minors, by no more than six months. After a maximum of 18 month of detention, a person must be released (Art. 79 FNA).
Guarantee of human rights in connection with coercive measures
Coercive measures may only be used as a last resort. Their application must be proportionate and in conformance with human rights. These rights are guaranteed by:
- the European Convention on Human Rights (ECHR),
- the Federal Constitution (FC),
- the Return Directive,
- the Foreign Nationals Act (FNA),
- the Law on the Use of Force (LUF) (in French), and
- the Ordinance on the Use of Force (OUF) (in French).
A person deported by air, must be informed thereof beforehand unless this would compromise the deportation. The person concerned also has a right to a medical examination if he or she requests one or if he or she shows signs of health problems (Art. 27 LUF). It is prohibited to use techniques involving physical force during coercive deportations. This provision applies in particular because these techniques impair the person’s health or could specifically obstruct his or her respiratory tract under certain circumstances (Art. 13 LUF).
A distinction is made between four levels of enforcement during returns by air (Art. 28 LUF):
- Level 1: If the person being returned agrees to return independently, he or she is accompanied to the plane by police. After that, he or she travels onward independently.
- Level 2: If the person being returned does not agree to return independently, he or she is accompanied by two male or female police officers and handcuffs can be used if necessary.
- Level 3: If the person being returned is expected to resist but he or she can still be transported in a regularly scheduled flight, he or she is usually accompanied by two male or female police officers in plain clothes. The use of handcuffs, other means of restraint and physical force is allowed at this level.
- Level 4: If the person being returned is expected to resist and a special flight is needed to transport him or her, he or she is usually accompanied by at least two male or female police officers in plain clothes. The use of the same means of coercion is allowed as at enforcement level 3.
Deportations must be monitored in Switzerland by independent third parties (Art. 8 para. 6 Return Directive; Art. 71a FNA; Art. 15g and 15h Ordinance on the Enforcement of Removal and Deportation Orders for Foreign Nationals (OERDOFN), in French). This task is currently performed by the National Commission for the Prevention of Torture (NCPT). It is a national institution established by federal law (SR 150.1) to monitor compliance with the UN Convention against Torture. It acts independently of the authorities and has its own separate mandate.
The deportation process begins with the person concerned being accompanied to the airport and ends with his or her handover to the authorities in the destination country. If deportation fails, it ends after the return flight to Switzerland (Art.15f OERDOFN).