Art. 76aFNIA from 2022
Art. 76a (1) Detention under the Dublin procedure
1 The competent authority may order the detention of the foreign national concerned to ensure removal to the Dublin State responsible for the asylum proceedings, if in the case concerned:a. there are specific indications that the person intends to evade removal; b. detention is proportional; and c. less coercive alternative measures cannot be applied effectively (Art. 28 para. 2 of the Regulation [EU] No 604/2013 (2) ).
2 The following specific indications suggest that the person concerned intends to evade removal:a. The person concerned disregards official orders in the asylum or removal proceedings, in particular by refusing to disclose their identity, thus failing to comply with their duty to cooperate under Article 8 paragraph 1 letter a AsylA (3) or by repeatedly failing to comply with a summons without sufficient excuse.b. Their conduct in Switzerland or abroad leads to the conclusion that they wish to defy official orders.c. They submit two or more asylum applications under different identities.d. They leave the area that they are allocated to or enter an area from which they are excluded under Article 74.e. They enter Swiss territory despite a ban on entry and cannot be removed immediately.f. They stay unlawfully in Switzerland and submit an application for asylum with the obvious intention of avoiding the imminent enforcement of removal.g. They seriously threaten other persons or considerably endanger the life and limb of other persons and are therefore being prosecuted or have been convicted.h. They have been convicted of a felony.i. They deny to the competent authority that they hold or have held a residence document and/or a visa in a Dublin State or have submitted an asylum application there.j. (4) They are a risk to Switzerland’s internal or external security according to findings made by fedpol or the FIS.
3 The person concerned may remain or be placed in detention from the date of the detention order for a maximum duration of:a. seven weeks while preparing the decision on responsibility for the asylum application; this includes submitting the request to take charge to the other Dublin State, waiting for the response or tacit acceptance, and drafting and giving notice of the decision;b. five weeks during proceedings under Article 5 of Regulation (EC) No 1560/2003 (5) ;c. six weeks to ensure enforcement from notice being given of the removal or expulsion decision or the date on which the suspensive effect of any appeal against a first instance decision on removal or expulsion ceases to apply and the transfer of the person concerned to the competent Dublin State.
4 If a person refuses to board the means of transport being used to effect the transfer to the competent Dublin State, or if they prevent the transfer in any other way through their personal conduct, they may, in order to guarantee the transfer, be placed in detention if a detention order under paragraph 3 letter c is no longer possible and a less restrictive measure will not achieve a satisfactory result. The person may be detained until transfer is again possible, but no longer than six weeks. The period of detention may be extended with the consent of a judicial authority if the person concerned remains unprepared to modify their conduct. The maximum duration of this period of detention is three months.
5 The days in detention count towards the maximum duration in terms of Article 79.
(1) Inserted 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]). (2) See footnote to Art. 64a para. 1. (3) [SR 142.31] (4) Inserted by No I 2 of the FA of 25 Sept. 2020 on Police Counterterrorism Measures, in force since 1 June 2022 ([AS 2021 565]; [2022 300]; [BBl 2019 4751]). (5) Commission Regulation (EC) No 1560/2003 of 2 Sept. 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 222 of 5.9.2003, p. 3.
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