In Switzerland thousands of people are held in immigration detention. Affected people have to stay in prison up to 18 months. In comparison to usual prison the immigration detention is not based on a crime, but just on the suspicion, that someone wants to elude his/her deportation. The migration office can‘t just impose the imprisonment on a person, but has to verify it by the court for compulsory measures (Zwangsmassnahmengericht), which is the idea of a democratic division of powers. But in practice the court almost always confirms the requests of the migration office, which always has to renew the order of imprisonment after three months. An analysis of processes shows, how the courts and the court practice legitimate the degrading and psychically devastating immigration detention in democratic und juridical terms.
Justifications for the immigration detention
The law is put in a way, that the court has an enormous discretionary power to justify the suspicion, that a person will elude his/her deportation:
«Even though an accused person has the right to a free attorney, this is rarely ever provided. Most of the hearings are held without any advocate.»
- If the person mentioned in any protocolled conversation, that he/she would like to stay in Switzerland or doesen‘t want to go back to her/his homeland is enough a reason to put her/him in immigration detention.
- The judgement most of the time points out, that the person in question up to present never followed official directives. It‘s enough to not follow the official directive to leave the country.
- Another common accusation, is that the person doesen‘t have a passport. As most of refugees don‘t have a passport, or have lost or hid it, this point is made almost in every case.
- The imprisoned people are expected, that they help the authorities in providing the travel passport, as the deportation can be executed much easier with the passport. If a person doesen‘t help, the judgement accuses her/him for not having cooperated in organising the papers. No matter that it is almost impossible to organise the papers from within the prison. And who wants to help to authorities organise his/her own forced deportation?
- The immigration detention has to be reaffirmed all three weeks by the tribunal, when the deportation has not been executed in the meantime. This can be done up until a maximm of 18 months of detention, which is quite often the case for persons, whose home countries don‘t cooperate with the swiss authorities.
Demands for the Migrations Office
Also the Migration Office has to fulfill some requirements, to make the detention permissible. But the tribunal also has a big discretionary power to acknowledge the adherence to this requirements:
- The execution of the deportation has to be conceiveable within a reasonable timeframe. But the only requirement is that the swiss Migration Office could do the deportation within the time. If the deportation is blocked by the authorities of the homeland, or because the imprisoned person doesen‘t have a passport, the detention is permissible anyway. The practice however shows, that deportation to e.g. Northern African countries can be executed only rarely, and often after a very long period of detention. But for the tribunal this is no reason to classify the detention as disproportional.
- If the Migration Office is inactive for more than two months in a case, the detained person has to be released. That‘s why the Migration Office every two month sends a collective demand to the embassies to get travel papers for all people waiting for deportation.
The court hearing
The first thing in the court hearing is the questioning of the accused person. The judge asks questions in order to get statements that justify the suspicion of going underground. E.g. if a person would like to stay in Switzerland. A harmless, „yes, I like it here“ can reach for three months of prison.
If the detained person doesen‘t speak german, the hearing will be translated. But the translation is oftenly not made to the mother language of the person, but in any language that the person is supposed to understand. If an arabic speaking person understands some french, the hearing can be translated to french. The authorities don‘t care, if the person has no chance to understand the juridical wording and the text of the law in this language.
Even though an accused person has the right to a free attorney, this is rarely ever provided. Most of the hearings are held whitout any advocate. For Basel there is one single advocate who is responsible for everyone who is in immigration detention.
That is how a complex apparatus of juridic and democratic instruments is put to work, to legitimate the imprisonment and violent deportation of thousands of people. The Swiss State affords these prisons, tribunals and processes to justify this xenophobic practice in a pseudo-democratic framework. The multilayer bureaucracy takes the responsability of single persons und transmits it to institutions, so any person involved in the system, can deny any responsability for human tragedies.
The immigration detention also serves to demoralise people. In many countries the Swiss authorities can‘t deportate people by force, that‘s why people have to stay for months behind bars, until their morale is so low, that they prefere to leave „voluntarily“ to their homelands, instead of staying any longer in Swiss prisons without knowing why. Often one can hear the sentence, „here in Switzerland it is even worse, than in my country.“ This the exact goal of the authorities. To establish this tactics of demoralisation and the imprisonment of undesirables in a so called society of western values, the above described juridic-democratic play is needed.
For the imprisoned it must feel like in a novel by Kafka. They are being imprisoned for months without understanding what for, by a huge bureaucratic complex, in which everyone fulfills his/her function as a matter of course. Interrogated and listened to, but no matter what one says, at the end there are three months of imprisonment, whitout knowing what for – and without any possibility to avert the inevitable prolongation of the detention.