Update: 15.02.2018

The geographical restriction of rejected asylum seekers is commensurate

The Federal Supreme Court sees restricting a rejected Ethiopian asylum seeker as a legitimate way to impel him to return to his home country. This applies irrespective of the fact that forced repatriation is impossible because returning to Ethiopia voluntarily is possible, in principle.

Facts of the case

On 21 July 2016, the Migration Office of the Canton of Zurich restricted the movement of A., an Ethiopian national, to the municipal territory of Urdorf in accordance with Art. 74 of the Foreign Nationals Act (FNA) because his request for asylum was dismissed by the Federal Administrative Court in the last instance. In September of 2016, the Zurich District Court extended the territory to include the district of Dietikon. A. appealed the decision in October of 2016.

The Canton of Zurich’s Administrative Court ruled that restricting the man’s movements was unlawful in a verdict on 1 February 2017, because the measure would be inadmissible if repatriating the man proved to be impossible. Ethiopian nationals cannot be forcefully repatriated because of the negative position taken by the Ethiopian authorities. Repatriation is therefore impossible and the restriction is considered unlawful. The State Secretariat for Migration (SEM) appealed the case to the Federal Supreme Court (FSC).

The verdict

In a verdict on 13 November 2017, the FSC confirmed that it was impossible to force the man to repatriate to Ethiopia. A voluntary departure, however, was considered possible and Ethiopian authorities were prepared to provide all the necessary travel documents. The issue in this case was whether or not the restriction under Art. 74 FNA was intended to force the man to repatriate, making it unlawful if it is was impossible.

The Federal Supreme Court judges found that the law does not allow for such a narrow interpretation. The only legal requirements for such measures are the existence of a legally binding removal decision and the expiry of the deadline for departure or concrete indications that no departure is planned. This wording contradicts the assumption that the measure shall only be legal if a forced repatriation is legally possible. The historical and systematic interpretation of Art. 74 FNA does not lead to a different solution. The content and rationale of the provision is in facilitating “the implementation of a legally binding removal order and by re-establishing the correct legal status. The goal should not be forced repatriation and should not promote voluntary return.” The impossibility of forced repatriation does not change the exit requirements of the affected person.

The Federal Supreme Court further found that restricting the man’s movements to the district of Dietikon was proportionate. The Ethiopian man claimed that not being allowed to leave the district of Dietikon made it impossible for him to attend his German classes or go to mosque in the original territory of restriction (Urdorf). The court stated that German classes are also offered in Dietikon and there is a mosque there which A. could visit, so he couldn’t argue that the geographical restriction made his social activities impossible. Coercive detention (Art. 78 FNA) was also an option in this case, so the milder option (restriction) cannot be considered disproportionate.

AThe 2-year duration of the restriction could not be criticised for being disproportionate. To achieve a goal, a measure needs to be put in place for the right amount of time, not more or less. A. has lived in Switzerland for almost two years. The legitimate aim of the measure – to make him leave Switzerland – has not happened, so you measure cannot be said to be excessive. “Because A. remains in Switzerland illegally now that his departure deadline has expired, restricting his movements to the district of Dietikon does not disallow him anything that would not be forbidden anyway […].”

Given these considerations, the FSC revised the verdict of the Canton of Zurich Administrative Court of 1 February 2017 and confirmed the ruling of the Compulsory Measures Court of 28 September 2016.

Commentary

The restriction of rejected asylum seekers, according to Art. 74 FNA, may be a legitimate and appropriate measure in some cases to ensure the departure of these persons from Switzerland, or at least to encourage it. But the FSC ruling in this case must be criticised from various perspectives. The proportionality of the restriction was substantiated with the fact that the more stringent measure of coercive detention was also an option. As a result, the milder measure (restriction) can by no means be disproportionate. This reasoning fails to recognise that the mere existence of a stricter sanction does not mean the “milder” measure is automatically proportionate in any given case. Proportionality must be determined based on the specific measure or sanction and the circumstances of the individual case. The mere reference to the stricter sanction of coercive detention is not enough.

Something else that needs to be critically reviewed is the general assumption that it would be possible for the man to return to Ethiopia voluntarily. According to the country information offered by the State Secretariat for Migration, Ethiopia “is largely unable to collect possible incriminating information on returnees.” Apparently, this is not a sure thing and it not a sufficient basis to guarantee the voluntary returnee would not face severe sanctions in the individual case. Even if there is no general risk of sanctions, voluntary return must be assessed on a case by case basis and cannot be assumed in general.

© humanrights.ch / MERS - Hallerstr. 23 - CH-3012 Bern - Tel. +41 31 302 01 61