Update: 22.08.2018

Detention of children and minors in Switzerland under the law on foreign nationals

In Switzerland, youths between 15 and 18 years of age can be detained under the provisions of the law on foreign nationals. This is specified in the Foreign Nationals Act and according to a report from June 2018 by the National Council Control Committee (CC-N), even youths who are not yet 15 are detained in some cantons. By detaining children under 15, Switzerland is violating its obligations according to the Convention on the Rights of the Child (UNCRC) and existing national law. The CC-N’s criticism has already resulted in immediate action in the cantons of Bern and Zurich.

The importance of administrative detention

Administrative detention helps enforce the removal of foreigners without residency rights (read more on the issue here). Unlike in other European countries such as Hungary, Italy and Spain, where unaccompanied children and youth may not be detained, Swiss legislation does not include such a provision. The Foreign Nationals Act (FNA)  only prohibits the detention of children and youth under the age of 15. Youths between age 15 and 18 years may be imprisoned for a maximum of one year.

Numerous minors in administrative detention

On 26 June 2016, the National Council Control Committee published a report in which it reviewed the effectiveness, practicality and legality of administrative detention in the asylum sector. The report found that, between 2011 and 2014 alone, 200 minors were imprisoned after having their application for asylum denied, even though most of them were under 15 at the time of this decision. Most of these children “were probably imprisoned including their family network” (see page 14). The report notes that these figures are incomplete because cantons do not systematically collect such data.

According to a report by Terre des Hommes from 2016 on the illegal imprisonment of youths in Switzerland, 142 minors between age 15 and 18 were put in administrative detention in 2015 alone. 12 were unaccompanied. Since it is generally prohibited to imprison children under 15, the authors of the report assumed that no one under the age of 15 was in prison. Therefore, no figures exist for this age group.

Violation of the UN Convention on the Rights of the Child and the Foreign Nationals Act

The UN Convention on the Rights of the Child does not explicitly prohibit the imprisonment of children. The legal bases in Switzerland and current practices in cantons raise questions about its legality.

Administrative detention is disproportionate

In its report, the National Council Control Committee found that the imprisonment of youth between age 15 and 18 is only expedient to a limited extent. The UN Convention on the Rights of the Child stipulates that arrests, imprisonment or prison terms may only be considered as ultimate measures and must be of shortest duration (Art. 37 lit. b UNCRC). According to the report, the ratio of youths leaving the country who have been imprisoned is lower than that of adults. This means the policy does not achieve the ultimate aim of getting them to leave the country. This results in a potential violation of the law of proportionality.

In September 2015, the UN Committee against Torture (CAT) criticised the administrative detention of minors between age 15 and 18. The committee recommended Switzerland develop and implement non-custodial measures to replace the detention measures issued by the Swiss authorities. Arrests, imprisonment or prison terms are to be used only as a last resort, especially in the case of unaccompanied minors. Additionally, all custodial measures must be necessary and proportionate and imposed only for the shortest time necessary.

Prison conditions do not conform to children’s rights

The National Council Control Committee has criticised the prison conditions for children and youths. According to international law, minors must be strictly separated from adults and recreational activities must be provided. The UN Committee against Torture (CAT) found that this is frequently not the case for youths between age 15 and 18.

Administrative detention violates the principle of the best interest of the child

In its analysis, the CAT even goes one step further. It reminds states that children, meaning all persons under 18, may not imprisoned in principle because of their right to freedom according to Art. 37 CRC and because of the principle of the best interest of the child as defined in Art. 3 CRC. This applies to minor migrants, whether or not they are accompanied by an adult. The imprisonment of minors may not be justified by whether or not they are accompanied or have a right of stay.

The committee also states that imprisonment is never in the best interest of the child. This principle was adopted in a resolution by the Parliamentary Assembly of the Council of Europe; Switzerland agreed to this resolution. Nevertheless, the National Council Control Committee found that numerous cantons justify the imprisonment of children under 15 as being in the best interest of the child. Their argument is that imprisoning them prevents them from being separated from their parents.

Imprisonment of anyone under 15 is unlawful in any case

The National Council Control Committee found that the imprisonment of children below 15 “is considered illegal” even if it takes place within the family network and the arrest warrant applies to the parents and not the children.

Cantonal differences

The National Council Control Committee also found that practices vary widely from canton to canton. It states that the majority of cantons do not imprison minors under 15. 89% of all imprisoned children under 15 are in the canton of Bern.

Terre des Hommes, also found clear differences: “While some cantons do not follow the recommendation not to imprison children, other cantons imprison them along with adults they are not related to and some of whom have criminal backgrounds.” In some cantons such as Bern and Fribourg, minors reportedly serve their time in administrative detention in penal system institutions. This is particularly disturbing. Only very few cantons, such as Jura, Vaud and Nidwalden, do not imprison minors based on the law on migration. The canton of Basel Stadt abstained from imprisoning minors for several years but since 2017, there has been an increase in administrative detention sentences.

Insufficient transparency

The data cited must be assessed with care. In a comment on the National Council Control Committee’s report, the State Secretariat for Migration stated that some cantons had recorded partially inaccurate data. The canton of Bern, for example, included cases of minors who had been brought directly from their place of residence to the airport. Terre des Hommes also criticised the lack of information and statistics on imprisonment measures broken down by cantons.

Call for a change

The National Council Control Committee called for the Federal Council to “adhere to the legal regulations and to ensure that minors under the age of 15 are not put in administrative detention. Alternative measures should be examined and encouraged in the execution of removal orders of families. For minors over age 15, cantons must ensure that imprisonment is always used suitably and as a last resort.” Furthermore, minors over age 15 and any accompanying adults should be provided with suitable places. The federal data collection and management in this field should be enhanced as well as its monitoring.

In her parliamentary initiative, Green Party National Councillor Lisa Mazzone went one step further by calling for a general ban on administrative detention for underage migrants. Her stance was in line with a demand Terre des Hommes had previously made in its report on illegal imprisonment of minors in Switzerland. In its report, Terre des Hommes stated that administrative detention for youths is not only unlawful and expensive, but that it also harmed the affected persons and could lead to serious clinical symptoms such as severe depression, anxiety, post-traumatic stress disorder, and even to self-harm.

First reactions in the cantons

According to media reports, both the canton of Zurich and the Thun regional prison in the canton of Bern have reacted to the National Council Control Committee report. Both have announced they will no longer imprison children under age 15 in the future.

The Federal Council must take a stand by September 2018

The Federal Council has until September 2018 to make a statement on National Council Control Committee report. So far, it has repeatedly pointed out that removals are the responsibility of the cantons. In its response to the interpellation by National Councillor Piller Carrard, the Council also stressed that it sees no need for action since “unaccompanied minors are only imprisoned if absolutely necessary and for the shortest possible detention period.”

The Federal Council has not addressed the troubling lack of publicly accessible data on cantonal imprisonment measures, which is especially problematic from a constitutional perspective, because collecting such data is the Council’s responsibility. According to the Asylum Act (Art. 46, Para. 1 AsylA) the Confederation is responsible for overseeing removal orders. Furthermore, the Foreign Nationals Act states that the Confederation must oversee the implementation of the Foreign Nationals Act (Art. 124, Para. 3 FNA). Administrative detention is therefore under the supervision of the Confederation.

Commentary

For minors, this deprivation of freedom represents a particularly massive interference with personal liberties and the respect for the principle of the best interest of the child, which should come first. A reason for imprisonment that is only based on the Foreign Nationals Act cannot justify such a massive interference with children’s rights. The reasoning by cantons that imprisoning children under age 15 is in their best interest because it avoids separating them from their parents is cyncial. Cantons that renounce such extreme measures show that there are enough alternatives to enforce removals. Detaining minors is therefore completely unreasonable. Several international human rights bodies have pointed out this fact.

The Federal Council is acting irresponsibly by referring to the principle of proportionality and the “small” number of affected minors. Legislative measures are needed in all cases and all cantons to prohibit children and youths under 18 from being detained under the provisions of the law on foreign nationals.

Further information

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