Foreign Nationals and Integration Act (FNIA)

Art. 78FNIA from 2020

Art. 78 Coercive detention

¹ If a person does not fulfil their obligation to leave Switzerland by the appointed deadline and if the legally enforceable removal or expulsion order or legally enforceable order for expulsion from Switzerland under Article 66a or 66a^bis SCC¹ or Article 49a or 49a^bis MCC² cannot be enforced due to their personal conduct, they may be detained to ensure the obligation to leave Switzerland is complied with, provided it is not permitted to order detention pending deportation and a more lenient measure would lead to the goal.³

² Detention may be ordered for one month. It may, however, be extended by two months with consent of the cantonal judicial authority if the person concerned remains unwilling to change their conduct and leave the country. Article 79 remains reserved.⁴

³ Detention and its extension are ordered by the authorities of the canton which is responsible for enforcing the removal or expulsion order. If the person concerned is already in detention based on Articles 75, 76 or 77, they may be left in detention if the requirements of paragraph 1 are fulfilled.⁵

⁴ The first-time detention order must be reviewed at the latest after 96 hours by a judicial authority on the basis of an oral hearing. At the request of the detainee, the extension of detention must be reviewed by the judicial authority within eight working days on the basis of an oral hearing. The power of review is governed by Article 80 paragraphs 2 and 4.

⁵ The conditions of detention are governed by Article 81.

⁶ The detention order is revoked if:

a.

the person concerned is unable to leave Switzerland independently and in the proper manner, even though they have fulfilled the obligations to cooperate specified by the authorities;

b.

they leave Switzerland as ordered;

c.

detention pending deportation is ordered;

d.

a request for release from detention is granted.

¹ SR 311.0
² SR 321.0
³ Amended by Annex No I of the FA of 20 March 2015 (Implementation of Art. 121 para. 3-6 Federal Constitution on the expulsion of foreign nationals convicted of certain offences), in force since 1 Oct. 2016 (AS 2016 2329; BBl 2013 5975).
⁴ Amended by Art. 2 No 1 of the FD of 18 June 2010 on the Adoption of the EC Directive on the Return of Illegal Immigrants (Directive 2008/115/EC), in force since 1 Jan. 2011 (AS 2010 5925; BBl 2009 8881).
⁵ Amended by Annex No I 1 of the FD of 26 Sept. 2014 (Adoption of R[EU] No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection), in force since 1 July 2015 (AS 2015 1841; BBl 2014 2675).