Update: 22.03.2017

Harassment of rejected asylum seekers at the cost of human dignity

Since the summer of 2016, the canton of Zurich has been tougher on rejected asylum seekers receiving emergency aid. It has issued numerous restriction orders, which are binding obligations that only allow the rejected asylum seekers to move freely within the boundaries of a municipality or district. Courts have revised or quashed some of these rulings, and in early 2017 the Canton of Zurich Department of Security came up with a new form of harassment: the person receiving emergency aid must appear in person two times a day in order to receive the emergency aid. The basic right to emergency aid should not be tied to complicated legal provisions that severely restrict the freedom of movement of the persons concerned.

Tougher approach by the Canton of Zurich Department of Security

In August 2016, it became known that the Canton of Zurich Migration Office prohibited numerous rejected asylum seekers from leaving the municipality in which their emergency aid centre is located, except for compulsory journeys, which require prior written permission.

At a press conference of the Canton of Zurich Department of Security it was announced that in March 2017 658 rejected asylum seekers were staying in the canton of Zurich. 315 of them were staying in cantonal temporary accommodation, 177 in municipal accommodation (in particular disabled people, ill persons and families), 121 persons in prison and 43 in a cantonal transit centre. 153 of the 315 persons in temporary accommodation were restricted in their freedom to move, of which 54 had previously committed an offence (see TagesAnzeiger article of 17 March 2017). According to the authorities, the rest of the persons could leave Switzerland quickly if only they wanted to. The restriction orders are clearly designed to put pressure on rejected asylum seekers and force them to leave the country.

Since the summer of 2016, a total of 368 restriction orders have been issued, 144 of which have been contested – 38 successfully (see TagesAnzeiger article of 17 March 2017). The restriction orders annulled by the court were moved on to the next instance by the Canton of Zurich.

Legal basis

Limitations of the freedom of movement of rejected asylum seekers are generally decreed as restriction or exclusion order according to Art. 74 of the FNA (Foreign Nationals Act). According to this article, the competent cantonal authority may order a person not to leave or enter a pre-defined area, except under certain conditions. Such obligations can be issued against any asylum seeker or temporarily admitted person, if there is reasonable suspicion that the person may disrupt or endanger public order and security. Such binding obligations are also aimed at foreign nationals with a legally binding expulsion order who are suspected of not leaving the country by their deadline. It is up to cantons to decided whether or not to use this restrictive tool and, if so, to what extent.

For the implementation of the numerous restriction orders the Canton of Zurich Migration Office draws upon a directive on exclusion orders which entered into force on June 1, 2016, and is based largely on Article 74 of the FNA.

Complaints by the Zurich Cantonal Administrative Court

As mentioned above, so far only 38 of the 114 recourses against the restriction orders have successfully been contested. Here are two examples:

The Zurich Cantonal Administrative Court blew the whistle on the Canton of Zurich Migration Office for the first time in October 2016. The Migration Office had prevented a rejected asylum seeker from leaving his municipality for two years. The Cantonal Administrative Court claimed that confining the asylum seeker to the limits of the municipality was disproportionate, especially since the person never disappeared and was always available to the authorities. The district in which he was allowed to move was expanded to the Dietikon district and the town of Zurich urban district 9. As a result, the Canton of Zurich Department of Security decided to adapt their practices: limitations to the municipality have since only been ordered in case of rejected asylum seekers convicted of criminal offences.

In February 2017 the Canton of Zurich Migration Office was reprimanded again when the Zurich Cantonal Administrative Court considered the restriction order of an Ethiopian person to be disproportionate. It considered the measure to be undue if deportation proved impossible. Given the position of Ethiopian authorities, it is impossible to deport Ethiopian citizens. Since deportation is currently impossible, it is impossible for these people to be restricted to a certain area.

Attendance monitoring

In February 2017, another measure from the Canton of Zurich Migration Office led to heated discussions and protests. Emergency aid has recently been provided to those who can confirm their presence every morning and evening in writing. This procedure aims to ensure that the persons receiving emergency aid do not find shelter somewhere else. According to a report by NZZ of 5 March 2017, this regime has in the meantime been altered: The persons receiving aid now must explicitly stay in their allotted place.

Petition against the harassment

Several organisations believe these restriction orders and attendance checks are a form of systematic harassment of persons receiving emergency aid whose basic rights are thereby violated. In a petition launched to change the cantonal asylum policy, the competent Zurich Cantonal Councillor Mario Fehr has been called upon to lift all decreed restriction orders and attendance checks for asylum seekers in their lodgings. March 18, 2017, was declared the campaign day “against bunker politics and restriction orders.”

Commentary by humanrights.ch

It looks very much as if the canton of Zurich’s restriction orders against rejected asylum seekers are legally solid and cannot be contested as a matter of principle from a basic rights perspective, but only for individual cases where it is deemed proportionate. At least, a quarter of the appeals were successful.

A more fundamental problem lies in the obligation to register or to stay overnight in the emergency aid shelters in order for the emergency aid to be issued. This obligation is a massive interference with the personal freedoms and lacks any legal basis. At the same time, the Federal Supreme Court had taken a groundbreaking decision already in 2005 in which it stated that legal requirements for receiving emergency aid according to Art. 12 of the Federal Constitution are only valid if they help eliminating the reasons for the emergency (cf. Federal Supreme Court decision 131 I 166, 18 March 2005). This does not apply to the duty to report wherefore it constitutes an unlawful restriction.

The restriction orders also represent a scandal from two points of view. From a legal perspective and from a political perspective. The law on foreign nationals is so very repressive in how it deals with persons who have lost the right of stay that it allows cantonal authorities to treat rejected asylum seekers who are already in a difficult situation even worse. It is also alarming that the competent social democrat Cantonal Councillor seems to be taking advantage of these measures on purpose in order to gain more support from the right wing of the electorate. He has to face the accusation that he is knowingly reducing protection of the basic rights of one of the most disenfranchised social groups in Switzerland in order to win political support on the right at the expense of the human dignity of those affected.

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