Update: 14.08.2013

Is the designation of off-limit areas for asylum seekers in Bremgarten a violation of basic rights?

The asylum seekers living temporarily in barracks in Bremgarten in the Canton of Aargau are not allowed to move around freely. The new facility is operated by the Federal Office for Migration (FOM). The FOM had signed an agreement with the town of Bremgarten outlining the arrangement whereby numerous places in town are off limits for the asylum seekers. The human rights organisation "augenauf", who had already followed the issue for some time, decided to make the agreement between Bremgarten and the federal authorities public.

The agreement contains an appendix that defines 32 "sensitive areas" listed by the town council. These areas are not to be accessed by the asylum seekers. As the daily newspaper Tages-Anzeiger wrote on 6 August 2013, these taboo zones include the public swimming pool, schools and kindergartens, the casino and the multipurpose hall, as well as churches including their surrounding area.

"Misunderstanding" cleared up

On the very same day the article was published, Mario Gattiker, Director of the FOM, had to clarify that this entire story was the result of a misunderstanding. First of all, he explained, the whole issue was not about defining off-limit areas for asylum seekers, but rather about rules for their access to sensitive areas. Secondly, "only schools and sports grounds" had been defined as such sensitive zones and not 32 places including libraries and churches. This was instantly rejected by the mayor of Bremgarten, Raymond Tellenbach, in the 7 August 2013 edition of the newspaper "Der Bund". It was only after a discussion with the FOM on the following day that the mayor concurred with the position of the FOM.

The question whether the debate revolves around 32 sensitive areas or "only schools and sports facilities" (including the public swimming pool) is of minor importance. What it comes down to is the basic question of whether or not such a limitation of freedom of movement for asylum seekers is legal.

No legal basis for preventative designation of off-limit areas

Is the designation of off-limit areas for asylum seekers a mandatory measure legally supported by the Foreign Nationals Act (FNA)? The designation of off-limit areas as done by the FOM and the town of Bremgarten is at the very limits of the legal practice based on the FNA. This Act allows the authorities to refuse a person access to certain areas in case he/she is a threat to public order and security, especially if the person is involved in drug trafficking (Art. 74 Para 1 FNA). A 2003 decision of the Federal Supreme Court states that such sanctions can also be issued solely on the basis of strong suspicion of the above-mentioned grounds (2A.347/2003, E 2.2).

Therefore it is conceivable that the authorities will ban single asylum seekers from loitering around schools if they suspect them of drug trafficking.
In the case of Bremgarten, the authorities have gone one important step further: they decided to pre-emptively refuse a whole group of people from accessing to certain public places, especially sports grounds and the public swimming pool. There is no legal basis for such a measure. But considering that such a measure violates the right to freedom of movement (Art. 10 Federal Constitution), one of the basic rights, a legal basis is imperative. Without legal basis, the measure constitutes a violation of a basic right. A further question question would arise as regards proportionality.

Indirect violation of a basic right

Apparently, this view is also shared by the FOM. According to Urs von Däniken (FOM) in an interview with the TV news programme "10 vor 10", the presence of a single asylum seeker in the public swimming pool area would not entail any legal consequences. Besides, "augenauf" reports that the FOM conceded that a general and unfounded no-go zone for asylum seekers was illegal and unenforceable.

But according to media reports the agreement between the FOM and the city of Bremgarten envisages the option to withdraw the permission to leave the asylum premises or to take other disciplinary measures in the case of repeated violations by asylum seekers against orders of the authorities. Although the designation of off-limit areas cannot be legally enforced, their purpose is to serve as a part of a sanctions regime on the level of house rules of the asylum facilities, along with more severe measures to limit the asylum seekers' movements. If we follow this flawed logic through, then the threatened sanctions would not be legally enforceable either. The entire system of rules limiting asylum seekers' movements would fall apart if one of the disciplinary sanctions were to be challenged in court.

From a constitutional point of view the designation of off-limit areas are untenable and illogical. The whole idea of a general preventative designation of such areas has no legal effect. This designation is nothing but a phony prohibition with the aim of discouraging asylum seekers in these facilities from exercising the right to freedom of movement. This amounts to an indirect and illegal restriction to the right to freedom of movement by means of a discouraging measure and thus to an indirect violation of a basic right.

Legal verification necessary

Another problematic issue in relation to the house rules of Bremgarten asylum centre is the rigorous limitation of the time the asylum seekers are allowed to spendoutside the centre (08.00-17.00). This, too, constitutes a grave violation of personal freedoms and the right to freedom of movement, requiring legal clarification.

The Zurich newspaper NZZ reported on 9 August 2013 that, for several years now, the Federal asylum centres in Nottwil and Eigenthal have practised similar procedures regarding freedom of movement. The FOM will open two further Federal asylum centres in the coming months (e.g. in Alpnach and Menzingen), where even stricter measures regarding no-go areas are planned. It is important not to allow such restrictive regulations on the right to freedom of movement to become the common standard in all Federal asylum centres. There is a need for legal clarification by an independent party of the entire issue and related practices.

The topic is also present on an international level. For the first time in years, Human Rights Watch has issued a longer article on a topic regarding Swiss politics. It is not surprising that the foreign perspective focuses on the latent racial segregation component that is evident in this case.

Unambiguous statement by Federal Councillor Sommaruga

A legal clarification of the issue is necessary even though Federal Councillor Simonetta Sommaruga clearly took a stand against a "general and preventative ban for asylum seekers to enter a public swimming pool", as reported by the NZZ newspaper on 9 August 2013. In this interview, the Federal Councillor stated that the basic rights are non-negotiable.
It is imperative to apply this position to the house rules of all Federal asylum centres with the likely effect that all agreements between the federal and municipal administration will have to be re-written.

Commentary: Creating approval via simulating a ban

Authorities responsible for the accommodation of asylum seekers have claimed to have issued these off-limit areas in order to assure peaceful co-existence in the community that hosts the asylum seekers facility. The declared aim was to secure the local population's approval for the establishment of the centre. This approach can be countered with the words of Moreno Casaola, Director of Solidarité sans frontiers: "To provide an asylum system requires social consensus to protect people whose lives are threatened. Thus, providing such a protection is the duty of all of us. Not everyone might like to fulfill a duty, but they still have to be fulfilled by society as a whole. It is not acceptable that «society» is willing to comply with this duty (if ever) only to the extent that conditions are imposed on the vulnerable parts of society. This is the definition of discrimination. Would you consider it acceptable, if I objected to the construction of a nursing home and only accepted it if the people living in the home were prevented from going to Migros or Coop grocery stores because I feel they slow me down at the check-out counter?"

Anxious and defensive citizens opposing centres for asylum seekers should not be lured into making concessions by enhancing their prejudices against the asylum seekers. The designation of off-limit areas conveys the message that all prejudices against asylum seekers are correct and that all asylum seekers are dangerous people. What makes this measure completely inacceptable is the fact that the authorities are prepared to commit an indirect violation of a basic right.

If the FOM sticks to this illegal designation of off-limit areas then this would be a further example of how frivolously the asylum authorities are prepared to sacrifice basic rights of one part of the population in order to provide the other part with a vague feeling of security and safety - even more so as the off-limit zones are nothing but a placebo to generate comfort for one part and deterrence for the other part of society.

Documentation

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