Update: 02.11.2016

Fundamentals on administrative detention of foreigners

Migratory pressure challenges Switzerland as it does many other European countries. For a long time, legislative measures have been trying to enforce the compulsory expulsion of foreigners if they do not leave the country when they are required to. The Foreign Nationals Act (FNA) allows the authorities to detain persons without residency permits and rejected asylum seekers for up to 18 months when they have not committed a criminal offence. Every year thousands of foreign nationals are affected by this kind of administrative detention.

What is administrative detention?

Administrative detention is not a measure that investigates or prosecutes criminal offences under the Swiss Criminal Code (SCC). It should guarantee the administrative removal or expulsion of persons and prevent their disappearance. It is meant to enforce removal even against the will of an affected person or to compel a person to leave the country. Administrative detention is governed by the FNA and is carried out by cantonal authorities. Its legality and proportionality must be re-examined by a judicial authority within 96 hours (Art. 80, Para. 2 FNA).

Administrative detention – continually tightening measures

In 1986, Switzerland replaced its internment of rejected asylum seekers — which had previously been legal but was increasingly criticised by human rights groups and the European Commission of Human Rights in Strasbourg — with the system of administrative detention for a maximum of 30 days. As of 1 February 1995, the maximum length of administrative detention was nine months. The preparatory detention introduced at the same time allowed authorities to detain foreign nationals for three months during the procedure to decide on their right to stay. When the Asylum Act was revised in 2005, the possible length of pre-deportation detention was extended to 18 months, and administrative detention was extended to a maximum of six months. At the same time, a system of coercive detention was introduced. Various adjustments to FNA were made in 2015 when the Dublin III Regulation was adopted. According to this regulation, a person can only be detained if they are a flight risk and only for a maximum of six weeks. Since this period seemed too short to the Federal Council, a new kind of detention for uncooperative behaviour was introduced in Art. 76a FNA to solve the problems with the Dublin procedure.

Diversity of detention measures

Detention is an important law instrument for handling foreigners, as evidenced by the many detention forms established by Swiss legislative authorities:

  • Preparatory detention during the finding of a decision on the right of residence (Art. 75 FNA).
    This form of imprisonment makes up 2% of the cases of administrative detention but it is particularly problematic since it affects persons whose removal order has not even been decided on and may never be issued.
  • Pre-deportation detention against persons already facing a first instance removal or expulsion decision (Art. 76 FNA). This is the most common form of administrative detention and it is applied to rejected asylum seekers and undocumented foreigners who have been caught and have received a decision by the authorities compelling them to leave Switzerland.
  • “Small pre-deportation detention” against persons facing an enforceable judgement for which authorities had to procure the necessary papers (Art. 77 FNA). The “small pre-deportation detention” is valid for a maximum of 60 days.
  • Dublin detention against persons whose asylum request is the responsibility of another Dublin state (Art. 76 a FNA). This form of detention is especially problematic if a person is to be extradited to a Dublin state in which human rights are not respected or assured.
  • Coercive detention against persons whose expulsion order cannot be enforced due to their personal conduct (Art. 78 FNA). This detention is applied after the failure of an affected person to meet the deadline to leave the country mentioned in the decision of expulsion and to cooperate with authorities to organise their homeward journey. In comparison to the other measures, coercive detention is often extremely lengthy. In 78% of cases, the desired effect of motivating the foreigner to leave Switzerland is not achieved.

The total duration of administrative detention may not exceed six months in total (Art. 79, Para. 1 FNG). However, the maximum duration can be extended for another 12 months by a cantonal juridical authority if the person involved does not cooperate with the competent authority or the sending of the necessary departure documents is delayed by a state that is not a Schengen state (Art. 79, Para. 2 FNA).

Constitutional basis for detention

Both the Swiss Federal Constitution and the European Convention on Human Rights (ECHR) are directly applicable in Switzerland and protect personal freedom. Whether a measure is seen as a violation of personal freedom according to Art. 10, Para. 2 of the Federal Constitution or as deprivation of liberty according to Art. 31, Para. 4 of the Federal Constitution can only be assessed on a case-by-case basis according to the jurisdiction of the Swiss Federal Supreme Court. In practice, the difference is gradual. Article 5 ECHR only protects detentions of a certain length that are usually fulfilled by an administrative detention under the law on foreign nationals. Article 5 ECHR which is applied directly by the Swiss Federal Supreme Court in cases of administrative detention contains an exhaustive listing of allowable grounds for imprisonment, including preventing unauthorised entry into the country or facilitating the deportation of a person (Art. 5, Para. 1, Lit. f ECHR). The regulation only allows detention on the grounds of failure to comply with a legitimate court order, to implement a legally binding court order, or to prevent a threatening violation of law. Whether or not a certain form of administrative detention is consistent with the Federal Constitution or the European Convention on Human Rights is disputed on a case-by-case basis.

The principle of proportionality

Even if we assume that administrative detention can be ordered on a constitutional basis, this does not mean that it is legal since it also has to be proportionate. According to Art. 36, Para. 3 of the Federal Constitution an infringement of fundamental rights is only permitted if it is in line with the principle of proportionality, which must be respected in all detention measures. Therefore, imposing of an administrative detention or prolonging or reviewing it must be proportional at the time of the decision.

The prerequisite is that the relevant measure must be appropriate and necessary in order to achieve its purpose. The sole purpose of imposing administrative detention is to ensure the removal decision. Should this no longer be possible, the use of detention as a measure is unsuitable. If there are milder measures available, detention is not necessary and therefore not proportionate.

The proportionality of detention is controversial

It is rare for a legislation’s aim and its effect to be as far apart as in the case of administrative detention. The measure of coercive detention according to Art. 78 FNA is a good example. It does not achieve its intended objective in 78% of cases, that being the departure of a person from Switzerland, so the question of proportionality and the compatibility of the expulsion with the Federal Constitution is a priori just as questionable as the compatibility with the ECHR.

The principle of proportionality is only guaranteed with administrative detention if detention is limited to the minimum and is only prolonged if a removal decision is highly likely. The longer an administrative detention based on an order of removal lasts and the less the removal seems to be probable, the more closely a possible extension of detention has to be assessed from a perspective of proportionality (Decision of the Swiss Federal Supreme Court 135 II 105, E. 2.1. and 2.2.).

Proportionality is likely not adequately reassessed when the decision to prolong detention is made. In practice, the detention review proceedings frequently resemble a strictly prescribed administrative process whose result is clear from the outset.

Administrative detention must only be ultima ratio

Detention is prohibited under the principle of proportionality if the goal of expelling the foreigner can also be achieved through milder measures. The protection of the person’s human rights takes priority. The serious infringement of the right to personal freedom allows for custodial measures to be used, but only as a last resort and as ultima ratio.

The ultima ratio principle is expressly regulated in European law, Art. 15, Para 1 of the Directive 2008/115/EC on returning illegally staying third-country nationals. Switzerland considers the detention of a person legal “unless other sufficient but less coercive measures can be applied effectively in a specific case.” The European Court of Human Rights (ECtHR) also examines whether or not a less intense measure than detention could have been applied. In Mikolenko v. Estonia (10664/05) the Court ruled that the authorities could have applied different measures instead of detaining the complainant over a longer period of time when there was no immediate prospect of his deportation.

Dublin imprisonment according to Art. 76 a FNA was created specifically for the implementation of the Dublin III Regulation and allows a detention only if no alternative, less restrictive measures are available (cf. Art. 28 Para.2 Dublin III). In addition, the Swiss Federal Supreme Court has stated that nobody can be detained if they have already applied for asylum in another Dublin state. In fact, concrete evidence that the person is planning to abscond is necessary to detain someone (Swiss Federal Supreme Court Decision 2C_207/2016 of 2 May 2016).

In Switzerland, there has not been enough discussion on milder alternatives to administrative detention. European law is faced with the Swiss legal system that lists an excessive number of reasons for which authorities may detain a foreigner.

Between measures for enforcement and preventive sanction

Administrative detention may only be used as a measure to ensure expulsion. It cannot be used to break the resistance of the persons to be deported, to prevent the rendering of possible offences, or as a penalty itself.

Administrative detention can develop a punishing effect against this background. The reasons for detention are often connected to proven or suspected criminal conduct of the affected persons. Both preparatory and pre-deportation detention can be ordered against a person that has already been sentenced for another offence (Art. 75, Para. 1, Lit. h FNA and Art. 76, Para. 1, Lit. b FNA). This allows the authorities to apply further detention in connection to the FNA directly after a penal detention in order to ensure the expulsion procedure. Moreover, it is frequently assumed that a foreigner who has committed an offence will vanish and try to escape removal (regardless of whether it was a felony or not and irrespective of whether or not he or she was given a prison sentence). Pre-deportation detention is often mandated (cf. Art. 76, Para.1, Lit. b, No. 3 and 4 FNA).

In such cases, administrative detention is punitive. The persons affected by it understandably see it as a double punishment, since the penal action has already been sanctioned.

The different values of freedom

The several months of imprisonment without sentencing as result of an administrative detention is completely at odds with the affected person’s rights and cannot possibly be justified by public interest. There certainly are more important public interests than expulsion, such as punishment for crimes.

In penal law, an 18 months sanction (as is given in cases of administrative detention) is equivalent to the sanction for a moderate offence. In addition, first-time offenders are often fined or have to do community service. Detention has very little effect on offenders, and even less on person who feel they have nothing more to lose than their stay in Switzerland. The fact that these persons are imprisoned for a long period of time shows that there is a double standard regarding the freedom of persons. This is amplified by the fact a Swiss citizen would never be detained for 18 months to compel them to fulfil a legal public obligation.

With that in mind, it is particularly ironic that a foreigner can be detained for up to 18 months under an administrative measure.

High costs – little effect

Administrative detention greatly infringes on a person’s right to freedom, and it is very costly for society. The administrative detention centre at the Zurich airport alone costs CHF 6.8 million a year. The costs of this measure certainly outweigh its questionable benefits.

A survey conducted in 2005 showed that people are more eager to return the longer detention lasts. If detention has any effect at all, it is the “shock of incarceration” during the first few days. But many foreign refugees consider detention in a Swiss prison as a safer option than returning to their country of origin from which they fled at an enormous risk and high costs. All this suggests that shorter administrative detentions would be better.

Guidelines for prison conditions

In terms of human rights, it is imperative that the detention of persons awaiting deportation differs from other forms of detention because administrative detainees are not being imprisoned because of a crime they committed or because of a judicial sentencing. According to Art. 81, Para. 2 FNA and the jurisdiction by the Federal Supreme Court, persons in pre-deportation detention must be separated from persons in ordinary pre-trial detention or those in jail.

Cantonal differences

The detaining of foreigners who do not have the right to stay is organised by the cantons. Some cantons have special administrative detention centres, but most administrative detainees are held in ordinary regional prisons. Several cantons have special sections for administrative detainees with better conditions regarding liberty and mobility compared to ordinary detention, so the cantonal differences in terms of the detention regime, infrastructure and organisation vary widely.

Manifold deficits

DAs several Swiss and international human rights institutions (in particular the National Commission for the Prevention of Torture and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) have found over the past few years, conditions in prisons that hold administrative detainees are inadequate. Even in prisons created especially for pre-deportation detention, there is not enough space for the occupants to move. Detainees should also be guaranteed contact with the outside world, and that is not always the case. There are frequent suicides when people find themselves imprisoned without committing an offence.

Prison conditions in many pre-deportation prisons are unsuitable and disproportionate. There is therefore a great need to establish a separate detention regime for pre-deportation prisoners, if detention must be imposed.

Administrative detention – a vicious circle

Swiss authorities seem unmoved by the massive legal reservations against administrative detentions. In 2013, it was decided that another 500-700 spaces for administrative detention would be built. Other limitations on asylum seekers’ freedom, such as the ban to enter or leave certain areas show that Switzerland has double standards when it comes to personal freedom.

According to current information, these kinds of deprivations of liberty have just as little effect as administrative detention. People who cannot leave the country go through administrative detention and then go underground. Surviving with emergency aid alone is hardly possible without getting drawn into a circle of delinquency and imprisonment. Given the high costs and many issues connected to administrative detention in foreigner law, Switzerland would do better to innovate in the field of migration policy. Instead of imprisoning persons in order to make them return to their country of origin (with little chance of success) it would make way more sense to invest the money spent for these measures on effective integration measures.

Documents on administrative detention of foreigners

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