Switzerland - Federal Administrative Court, Decision dated 27 April 2016, D-2484/2016

Country of Decision:
Country of Applicant:
Date of Decision:
27-04-2016
Citation:
BVG, D-2484/2016, 27 April 2016
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Switzerland - Art. 31a(1) lit. b Aslyum Act (Asylgesetz [AsylG])
Switzerland - Art. 105 AsylG
Switzerland - Art. 108(4) AsylG
Switzerland - Art. 76a Foreigners Act (Ausländergesetz [AuG])
Switzerland - Art. 80(2) AuG
Switzerland - Art. 80a AuG
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Headnote: 

The Federal Administrative Court rules, that the significant risk of absconding for ‘Dublin-detention’ orders must always be assessed on a case-by-case basis. The sole existence of a ground for detention as set out in Art. 76a(2) AuG does not automatically indicate a significant risk absconding. Such an order is unlawful and must be rescinded. The Court ‘warns’ the SEM that the current practices are very concerning and require adaptation.

Facts: 

The appellant, an Algerian national, has sought asylum in Switzerland on 16 March 2016, after having lodged an application for asylum in France on 3 January 2014. The Swiss Ministry for Migration (Staatssekretariat für Migration [SEM]) issued an order on 14 March 2016 (received by the appellant on 8 April 2016) refusing the asylum application and ordering the return to France as well as the detention pending deportation for a maximum duration of six weeks. The SEM justified its decision by stating that the appellant attempted to abscond from the return by entering Switzerland and thus his behaviour would fulfil Art. 76a(2) lit. b Foreigners Act (Ausländergesetz [AuG]). Pursuant to this provision, behaviour that is to be understood as opposing an order by the authorities, may be seen as a concrete indicator that the person concerned intends to abscond from the return. The appellant was detained on 8 April 2016.

The appellant lodged an appeal against the order dated 14 March 2014 to the Federal Administrative Court.

Decision & Reasoning: 

The Federal Administrative Court clarifies that it examines only the legality and proportionality of the detention order and not the decision to return the appellant to France following a request to take back under the Dublin system.

The conditions for detention are set out in Art. 76a(1) AuG which allows detention pending deportation if in the concrete circumstances there are indicators that the person wants to abscond from being returned, the detention is proportional and no less intrusive measures can be applied.

The claim of the appellant that he has not been informed about the grounds for detention in a language he understands, was refused by the Court. It equally rejects the argument that he was not heard orally within 96 hours. The Court held that neither Swiss law, nor the Swiss Constitution nor the European Convention on Human Rights (ECHR) prescribe an oral proceeding in cases such as the one in the main proceedings.

The Court then went on to assess the legality of the detention order, in particular its compatibility with Art. 76a(1) AuG. It clarifies that, as a first step, the authorities must assess whether one of the grounds for detention set out in Art. 76a(2) AuG applies and, if that is the case, it must then examine on a case-by-case basis whether there are concrete indicators that the person concerned wants to abscond and whether the risk of absconding is significant. As regards the present case, the Court held that the SEM has only briefly assessed the existence of grounds for detention and has then concluded that the significant risk of absconding automatically results from the application of Art. 76a(2) lit. b AuG. The authorities have thus not conducted a case-by-case examination of the concrete circumstances. Moreover, the factual circumstances would argue against a risk of absconding as the appellant has indicated he would not resist a return to France.

The question whether the failure to justify the detention would result in the release of the appellant, has been left unanswered by the Court. It, nonetheless, marks the current practices of the SEM as being systematic and strongly concerning and as requiring adaptation and refers to a number of similar decisions where the Federal Administrative Court has argued in a similar manner without seeing any changes in the practice of the SEM.

Furthermore, the Court held that the order does not respect the principle of proportionality, as less intrusive measures such as a residence requirement may have been a possible option.

Outcome: 

The Federal Administrative Court allowed the appeal and rescinded the order dated 14 March 2016 in so far as it concerned the detention of the appellant. Moreover, the Court ordered to immediately release the appellant from detention.

Observations/Comments: 

Case summary written by Chad Heimrich (LLM candidate, Queen Mary University of London).

Other sources cited: 

Andreas Zünd, Migrationsrecht – Kommentar, 4th edn. 2015 (Art. 76a AuG) 

Case Law Cited: 

Switzerland - BGer, 1B_30/2014, 31 January 2014

Switzerland - BGer, 2A.170/2002, 4 June 2002

Switzerland - BGer, 2A.611/2003, 30 January 2004

Switzerland - BVG, D-2065/2016, 11 April 2016

Switzerland - BVG, D-2009/2016, 6 April 2016

Switzerland - BVG, D-2011/2016, 5 April 2016

Switzerland - BVG, D-2006/2016, 5 April 2016

Switzerland - BVG, D-1623/2016, 4 April 2016

Switzerland - BVG, D-1963/2016, 1 April 2016

Switzerland - BVG, D-1626/2016, 22 March 2016

Switzerland - BVG, D-2310/2016, 19 April 2016