Legal basis in national law
Swiss asylum legislation comprises the Asylum Act, the asylum ordinances and the directives on the Asylum Act.
In areas not regulated by the Asylum Act (AsylA), persons who have requested protection in Switzerland are subject to the Foreign Nationals Act (FNA) and the corresponding ordinances and directives. With respect to asylum, the Use of Force Act (UFA) (in French) may also be significant for deportations depending on the case involved.
Swiss Asylum Act
Asylum Act in force since 1981
For a long time, legal provisions on asylum were part of the general law on foreign nationals. The Swiss Asylum Act did not enter into force until 1 January 1981. It has undergone multiple partial and complete revisions since then. Developments in recent years can also be viewed against the backdrop of changes in the European context.
The Asylum Act contains provisions on the Asylum Procedure, on the legal status of asylum seekers within the framework of the asylum procedure, of refugees and of individuals in need of protection. It consists of provisions for individuals who have asked Switzerland for protection and names the conditions under which they can receive social assistance or emergency assistance.
Obligations under international law
The Swiss Asylum Act is anchored in the obligations that Switzerland has under international law and defines important principles such as the term “refugee” and the ban on refoulement, also known as the principle of non-refoulement. The term “refugee” in the Asylum Act is modelled on the term as used in the Geneva Refugee Convention. It is defined in Article 3 of the Asylum Act:
“Refugees are persons who in their native country or in their country of last residence are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages for reasons of race, religion, nationality, membership of a particular social group or due to their political opinions. Serious disadvantages include a threat to life, physical integrity or freedom as well as measures that exert intolerable psychological pressure. Motives for seeking asylum specific to women must be taken into account
Persons who are subject to serious disadvantages or have a well-founded fear of being exposed to such disadvantages because they have refused to perform military service or have deserted are not refugees. Compliance with the Convention of 28 July 1951 relating to the Status of Refugees is reserved.
Persons who claim grounds based on their conduct following their departure that are neither an expression nor a continuation of a conviction already held in their native country or country of origin are not refugees. The Convention of 28 July 1951 relating to the Status of Refugees (1951 Refugee Convention) is reserved.”
Ban on refoulement
The ban on refoulement says that no person may be forced to return to a country where he or she is subject to torture or to inhuman or degrading treatment. It is also prohibited to deport a person to a third country where the person seeking protection risks being forced to leave to go to a country such as the one described above (chain refoulement). This principle of non-refoulement is anchored in the Geneva Refugee Convention and the European Convention on Human Rights. In Switzerland, affected individuals receive asylum or are admitted provisionally if a deportation is impermissible.
Ordinances supplement the Asylum Act and to a certain extent, the Foreign Nationals Act (all Ordinances are available in French and German only):
- Asylum Ordinance 1 regarding Procedural Questions (AsylO 1),
- Asylum Ordinance 2 regarding Financial Questions (AsylO 2),
- Asylum Ordinance 3 regarding the Processing of Personal Data (AsylO 3),
- Ordinance of the Swiss Federal Department of Justice and Police (FDJP) on the Operation of Accommodations relating to Asylum,
- Ordinance on Admission, Stay and Gainful Employment (OASGE),
- Ordinance on the Enforcement of Removal and Deportation Orders for Foreign Nationals (OERDOFN), and
- Ordinance on the Integration of Foreign Nationals (OIFN), and
- Ordinance on the Issuing of Travel Documents for Foreign Nationals (OITDFN).
A test centre for accelerated asylum procedures (Art. 112b AsylA) began operating in January 2014 as part of the restructuring of the Swiss asylum system. The special features of how this test phase proceeds are regulated in the Test Phases Ordinance (TestO).
The Foreign Nationals Act
If the Asylum Act has no special provisions, the Foreign Nationals Act (FNA) is authoritative. The following provisions are relevant for asylum:
- Provision on temporary admission (Chapter 11),
- Provision on family reunification (Chapter 7),
- Provision on deportation and the use of coercive measures (Chapter 11, Sections 4 and 5),
- Provision on admission for a period of stay with gainful employment (Chapter 5, Section 1),
- Provision on stateless persons (Chapter 5, Section 4), and
- Criminal provisions (Chapter 16).
The following provisions are also very important:
- Provisions on the requirements for obtaining a residence permit or a settlement permit.
The most important basis for the provisions in the Foreign Nationals Act is:
Division of powers
According to the Federal Constitution (Art. 121 para. 1 FC), the Confederation is responsible for
“…legislation on entry to and exit from Switzerland, the residence and the permanent settlement of foreign nationals and on the granting of asylum.”
The cantons have no legislative power in the areas cited above. However, they do have important enforcement powers. Although they cannot grant asylum, they are responsible for granting and revoking most permits under the law pertaining to foreign nationals and for carrying out deportations.