Switzerland

Switzerland is party to the 1954 Convention and to most relevant human rights instruments, but it has not acceded to other core statelessness treaties. There is an administrative procedure in place to determine statelessness, but it is not yet set in law nor in line with good practice. The protection granted under the procedure is often limited to a one-year renewable residence permit and the definition of a stateless person currently applied is not in line with the 1954 Convention. Nonetheless, there is no lawful stay requirement to access the procedure, claims must be considered, decisions can be appealed, and basic minimum support is available to applicants. The Swiss Government accepted a recommendation under the Universal Periodic Review to formalise and ensure the procedure is fair and accessible, and agreed to bring the definition of a stateless person in line with the 1954 Convention.

Procedural safeguards are in place for those detained under immigration powers, and alternatives to detention exist in law and practice, but some stateless people not identified as such may be at risk of arbitrary detention. Although there is no full safeguard in Swiss nationality law for otherwise stateless children born on the territory, there are routes to naturalisation for some children who would otherwise be stateless, and there are provisions to prevent statelessness in the case of foundlings, adopted children and children born to Swiss nationals abroad. Birth registration should be possible even where parents are undocumented, and civil registry officials are prohibited from sharing information with immigration authorities.

Last updated: 
Dec 2017
Next scheduled update: 
Dec 2018
Country expert(s): 

Jyothi Kanics, ENS Advisory Committe member and Barbara von Rütte, humanrights.ch

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Switzerland is state party to only one of the core statelessness treaties, the 1954 Convention. It is not party to the 1961 Convention, the European Convention on Nationality nor the Convention on the Avoidance of Statelessness in Relation to State Succession. Although it is party to all the other relevant human rights treaties, it retains a number of reservations that could impact on statelessness, for example in relation to freedom of movement, access to the labour market and family reunion.

  • Switzerland is state party to the 1954 Convention with no reservations and it has direct effect.
  • Switzerland is not state party to the 1961 Convention.
  • Switzerland is not party to the European Convention on Nationality nor the Convention on the Avoidance of Statelessness in Relation to State Succession.
  • It has signed and ratified the European Convention on Human Rights with no reservations.
  • Although not a member state of the European Union (EU), Switzerland is bound by the EU Returns Directive under Bilateral Agreements.
  • Switzerland has signed and ratified all other relevant international treaties, but it does retain some reservations. Its reservations to the Convention on the Rights of the Child could have implications for statelessness, as they relate to family reunification rights for certain non-citizens; the separation of children from adults in situations of deprivation of liberty; and children's rights in the criminal justice system.
  • Reservations to the International Covenant on Civil and Political Rights relate to restrictions on residence and free movement rights of certain non-citizens at cantonal level.
  • Reservations to the Convention on the Elimination of all Forms of Racial Discrimination relate to non-citizens' access to the labour market, which could have implications for stateless people.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

Switzerland collects and publishes disaggregated data on statelessness, and estimates for the size of the stateless population are available. However, different government departments use different categories and definitions, which are not publicly available, so the reliability of official figures on statelessness is questionable. The State Secretariat for Migration (SEM) publishes data on stateless people applying for naturalisation and international protection. UNHCR is carrying out a mapping of statelessness in Switzerland due to be published in 2018.  Statistics on immigration detention are gathered at cantonal level, but data on the number of stateless people in detention is not publicly available. 

  • The Swiss Government uses different categories and definitions in different departments and the definitions are not publicly available. The State Secretariat for Migration (SEM) uses the categories 'stateless', 'without nationality' (ohne Nationalität) and 'state unknown' (Staat unbekannt). The Federal Statistical Office (FSO) uses the categories 'stateless', 'not attributable according to current borders' and 'no indication'. The categories 'without nationality' and 'state unknown' as well as 'not attributable according to current borders' and 'no indication' might indicate hidden stateless populations such as Palestinians or Tibetans.
  • In 2016, SEM reported 471 stateless people (disaggregated by gender, type of residence permit, and Canton). The FSO reported 408 stateless people for 2016. In July 2017, SEM reported 520 'stateless' people, 194 'without nationality', and 855 as 'state unknown'. Stateless people are also recorded in SEM's naturalisation statistics.
  • UNHCR recorded 66 stateless people in Switzerland in 2016, not including refugees (based on data from SEM). There is no UNHCR estimate for the population at risk of statelessness. There have been no official surveys or mapping studies of statelessness by the authorities to date, but UNHCR Switzerland is carrying out a mapping to be published in 2018.
  • In August 2017, SEM recorded 41 stateless people, 593 'without nationality' and 649 'state unknown' in the asylum procedure; as well as 125 stateless people, two 'without nationality', and 505 'state unknown' recognised as refugees.
  • Studies have estimated large populations of undocumented migrants living in Switzerland. A 2015 study estimated 76,000, and others up to 180,000. It is unclear to what extent there may be stateless people in this group. There is anecdotal evidence that children born in Switzerland to parents from jus soli countries in the Americas may be stateless.
  • Statistics on immigration detention are not publicly available. As immigration detention is mainly a cantonal competence, the federal authorities rely on information provided by the Cantons.
  • SEM publishes statistics on enforcement support in the context of departure from Switzerland, including enforced removals of those who have either not claimed asylum or been refused asylum, and those removed under readmission agreements.

Statelessness Determination and Status

Identifies whether countries have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place (Group 1), those with other administrative procedures (Group 2), those with a status but no clear mechanism (Group 3), and those without any status or mechanism (Group 4). Where a procedure exists, this is assessed against good practice, and the rights granted to recognised stateless people are examined.

There is an administrative procedure to determine statelessness in Switzerland, so it falls within Group 1, but it is not formalised in law and there are significant gaps, including that the definition of a stateless person is not in line with the 1954 Convention. There is no fee and authorities must examine all claims, but neither is there any public information or guidance to facilitate access. In practice, the burden of proof is on the applicant and the standard of proof applied is inconsistent. There is not normally an interview and access to legal aid is rarely granted in practice, but decisions can be appealed to the administrative court and applicants may access minimal subsistence assistance. Recognised stateless people can apply for a one-year renewable residence permit and travel document, and access healthcare, social security and employment. There is an accelerated route to naturalisation for stateless people married to Swiss citizens and children who meet additional criteria, but not for other adults.

  • There is an administrative procedure to determine statelessness in Switzerland, but it is not a formalised procedure established in law.
  • The procedure is governed by general administrative guidance, and the State Secretariat for Migration (SEM) is the centralised competent authority. There is no dedicated statelessness unit within the SEM so applications are handled by the Asylum Division “Aufenthalt" sections.
  • An application to the procedure must be submitted in writing (in one of the Swiss official languages: German, French, or Italian), be reasoned, and include evidence. Documents in other languages should be submitted with a certified translation, but the authority has discretion to accept documents in other languages in exceptional circumstances.
  • There is no fee or time limit to submit the application, nor any requirement for lawful stay. There is an obligation on the authorities to consider all applications, but it is not possible to make an application ex officio.
  • There is little public information and no instructions on how to make a claim for stateless status. There is only an internal guidance document published by SEM, which is targeted at decision makers and not written as public information or guidance for applicants.
  • It is not clear whether any training on statelessness is provided to decision makers within SEM.
  • Although the 1954 Convention has direct effect in Switzerland, Swiss authorities apply a different definition of a stateless person, which is not in line with international standards. Nonetheless, Swiss courts have held it to be compatible with the 1954 Convention.
  • Switzerland only recognises people as stateless if they have lost their nationality through no fault of their own or their parents and have no means of reinstating it. Recognition additionally requires the person to demonstrate an interest worthy of protection (“schutzwürdiges Interesse”), in other words, the applicant must substantiate they would legally be in a better position if recognised as stateless. In practice this is interpreted in a very restrictive way.
  • In its third cycle of Universal Periodic Review (November 2017), Switzerland accepted a recommendation to ensure that the definition of a stateless person is fully consistent with the 1954 Convention.
  • In principle, SEM must establish the facts and the applicant has a duty to cooperate. In practice the burden of proof is primarily on the applicant who must provide documents to demonstrate that they are stateless.
  • In the absence of a specific rule, the standard of proof in the procedure is ‘full proof’ (the applicants must prove they are stateless), which is higher than in asylum applications, where the standard is reduced to ‘credibility’; however, the application of the standards in practice is inconsistent.
  • Other than in the asylum procedure, there is no explicit legal provision addressing protection needs and evidentiary challenges for women and children. There is no information available whether this also applies to the statelessness procedure.
  • The SEM Instruction on statelessness in principle serves as internal guidance. There is no public information available on any other internal guidance.
  • In principle, free legal aid and representation at first instance and appeals stage is conditional on the individual not having sufficient means and having some prospect of success. In practice, free legal aid is virtually never granted in first instance procedures with SEM.
  • An interview is permitted in law, but in practice, both the first instance and appeal procedures are normally written. Applicants must submit documents in one of the official languages of Switzerland and translation costs are not covered. There is no right to an interpreter, as the procedure is primarily written.
  • Decisions are given in writing with reasoning.
  • There is no quality assurance audit of the procedure. UNHCR does not participate in the proceedings and does not have access to files.
  • There is a general obligation on authorities to refer people to the relevant competent authority and procedure, but only once an application has been lodged. There is no obligation to formally refer someone in the asylum procedure to the statelessness procedure, but it may happen informally.
  • There is no automatic legal admission or status during the procedure and detention and expulsion are legally possible, but there are no verified reports of this happening in practice.
  • In case applicants have no other legal status upon application for the procedure, they have the right to minimum assistance, care and financial means for a decent standard of living, but this is a very low level and they have no right to work. In practice, most applicants are seeking asylum or recognised as refugees and so have some rights as such.
  • There is no fixed timeframe for the procedure apart from the general constitutional guarantee to have a case decided within a reasonable time. In practice it can vary between several days and several years, and may be affected by a parallel claim for asylum.
  • Depending on residence permit, freedom of movement may be limited. For example, typically, asylum seekers and those with provisional admission are assigned to live in a specific Canton and cannot relocate without permission. Recognised refugees and stateless pople are able to live anywhere in Switzerland.
  • The SEM decision can be appealed to the Federal Administrative Court and thereafter to the Federal Tribunal.
  • Legal aid is available for the appeal if the applicant does not have sufficient means and has some prospect of success.
  • There is no fee, but the applicant must bear the costs if the decision is negative. Costs can be waived if the person does not have sufficient means and has some prospect of success.
  • There is no specific mechanism to monitor and assess errors in decision making.
  • People recognised as stateless can apply initially for a one-year renewable residence permit and a travel document. After 10 years’ legal residence a permanent residence permit may be granted at the discretion of the authorities.
  • Family reunion rights depend on the type of residence permit granted: for temporary residents it is discretionary; for permanent residents it is non-discretionary provided the family intends to live together; those with temporary admission (no residence permit) can apply after three years, provided the family lives together, has appropriate housing and is not dependent on social security.
  • A person recognised as stateless and granted a residence permit has access to the labour market and freedom of movement.
  • Children up to the age of 16 have a constitutional right to free primary education. Higher education should be accessible on the same basis as nationals (there may be some minor fees).
  • Recognised stateless people have access to healthcare and social security.
  • There is an accelerated naturalisation procedure only for stateless people married to Swiss citizens and for stateless children (under the age of 18) with five years' legal stay preceding the application, who are 'integrated' (respect public security and order, constitutional values, can communicate in one of the national languages), and are in work or education (not dependent on social security).
  • People who have been sentenced to a custodial sentence are excluded from naturalisation, but can be allowed to naturalise in the case of minor misdemeanours at the discretion of the authorities.
  • There is a ‘good character’ clause, requiring respect for the constitutional values of Switzerland.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, how alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release.

Protections against the arbitrary detention of stateless people are limited in Switzerland. Statelessness is not considered a juridically relevant fact in decisions to detain, a country of removal does not need to be identified prior to detention, and detention can be ordered while the authorities are establishing a person’s identity. The law does provide for some alternatives to detention, but these are not systematically considered prior to detention. Some procedural safeguards are in place, such as a time limit, judicial oversight within 96 hours of the detention order, and access to free legal aid, but there are reports of barriers to accessing legal assistance. It is not clear what documentation is issued to people released from detention, but if removal cannot take place, people can be released undocumented with very few rights unless they have another route to regularisation.

  • Powers for immigration detention are provided for in law and allow for administrative detention on grounds that go beyond ECHR 5(1)(f), though they have been held by the courts to be in line with ECHR Article 5. Grounds include: temporary detention to determine identity or notify of a decision; detention in preparation for departure for persons without residence permit; detention pending deportation; detention under the Dublin Procedure; detention pending deportation due to lack of cooperation in obtaining travel documents; and, coercive detention.
  • A country of removal does not need to be identified prior to detention. Coercive detention can be ordered before the country of removal has been determined and detention pending deportation can be ordered while the authorities are establishing the person’s identity.
  • Statelessness is not a juridically relevant fact in the decision to detain, which can lead to detention being disproportionate and unlawful if removal is not possible.
  • A referral to the statelessness procedure is possible if the person lodges a claim for statelessness, but there is no formal referral mechanism.
  • The law foresees the application of alternatives, but in practice there is no systematic consideration of alternatives during decisions to detain.
  • It is very likely that some stateless people are placed in immigration detention in practice, but no information is available to verify this.
  • The law requires consideration of vulnerability in relation to detention conditions, but statelessness is not specified as a vulnerability factor. There is no information available on how the vulnerability assessment is conducted in practice.
  • The law provides for alternatives to detention, including the obligation to report to the authorities, bail, deposition of travel documents, and restriction and exclusion orders. However, in practice alternatives are not systematically considered during removal proceedings and they are rarely applied in practice. The law on detention under Dublin procedures explicitly requires that alternatives to detention are exhausted.
  • The law does not provide for a statutory time limit on alternatives, although the general principle of proportionality requires time limits and reviews of necessity and proportionality. Judicial review of any measure of constraint, including alternatives to detention, is guaranteed.
  • There is evidence (for example, the UN Committee against Torture, Global Detention Project, AIDA, National Commission for the Prevention of Torture) that detention is used in practice prior to all alternatives being considered.
  • There is a maximum time limit set in law (six months plus up to 12 months where non-cooperation). For children aged 15-18, the maximum is six months plus six months.
  • The law provides that people must be informed in writing of the reasons for detention, and informed about their rights, including the right to challenge the legality and conditions of detention. It is not clear how this obligation is met in practice, and it is unlikely that detainees are routinely informed about the statelessness procedure.
  • Free legal aid in principle is guaranteed, but the person must not have sufficient means, the case must present a particular difficulty and have some prospect of success. NGOs report that people in detention face difficulties accessing legal aid in practice.
  • Within a maximum of 96 hours, a judge must review the initial detention order at an oral hearing. After the initial review a request for release can be submitted every month. An appeal can be lodged with the cantonal administrative court and then with the Federal Court. If removal or expulsion proves to be unenforceable the person must be released.
  • There is legal guidance on identification and documentation for removal and there is a SEM instruction on the identification and documentation of those subject to removal. However, this is not explicitly linked to the statelessness procedure.
  • It is not clear what status or documentation is issued to people released from detention. If removal cannot be implemented the person will be released undocumented and regularisation is only possible if they have a route to legal status, for example, through marriage.
  • Undocumented migrants have very limited access to social services (minimum assistance, care and financial means required for a decent standard of living but not social security). They have no right to work. In principle they could pay contributions to public health insurance to gain coverage. The right to education for children is guaranteed.
  • In principle detention is limited to the maximum period, but re-detention is possible and if the decision to detain is not on the same grounds as before, cumulative time spent in detention may not count towards the maximum period.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, and measures taken by states to promote birth registration among groups at high risk of remaining unregistered.

There are some provisions in Swiss nationality law to prevent statelessness, for example, in the case of foundlings, adopted children, and children born to Swiss nationals abroad (even if they do not register with the Swiss authorities before the age of 25, which can result in loss of the right to nationality in other cases). However, there is no safeguard in law for otherwise stateless children born in Switzerland. The only route to Swiss nationality for children born stateless in the country is a naturalisation procedure based on five years’ legal residence and other integration criteria, which expires once the child turns 18. Birth registration should be possible even where parents are undocumented, but there are reports of barriers and delays in such cases. However, there are no barriers to late birth registration and civil registry officials are prohibited from passing on information about residence status to immigration authorities.

  • There is no safeguard in nationality law for otherwise stateless children born on the territory, although there are routes to naturalisation for some children who would otherwise be stateless.
  • There is a provision in law for simplified naturalisation of stateless children based on five years' legal residence and other criteria (including integration, language ability, no dependence on social security, and respect for constitutional values). The decision is discretionary on the part of the authorities and the possibility expires once the child turns 18.
  • It is not a requirement that the parents are also stateless for the child to qualify for naturalisation, but the legal residence requirement may result in children born stateless in Switzerland not being able to acquire Swiss nationality if their parents are irregular migrants.
  • To qualify for simplified naturalisation, children must be recognised as stateless in addition to fulfilling the other criteria, and the standard and burden of proof are the same as for the statelessness procedure.
  • Foundlings are granted citizenship automatically by law. The provision is limited to children under 18 years-old.
  • If parents are later identified, citizenship can only be withdrawn if it would not result statelessness and if the child is under 18 years-old.
  • A Swiss child adopted by foreign nationals loses Swiss nationality once the adoption enters into legal force, but only if the child acquires the nationality of the adopting parent or already has this nationality.
  • In principle there are no conditions for the acquisition of nationality by a child born abroad to a Swiss national, but citizenship can be lost or forfeited if the child has not been registered with the Swiss authorities (in Switzerland or abroad) before their 25th birthday (but not if this results in statelessness).
  • In the case of unmarried parents where only the father is Swiss, additional evidence of paternity may be required.
  • All children born in Switzerland must be registered at the local civil registry office in the district where they were born within three days. The hospital will usually register the child automatically, but if the child is born at home or elsewhere, it can be reported by the mother or any other witness.
  • If the parents are undocumented the child’s birth still has to be registered, but there are credible reports of undocumented parents encountering barriers when trying to register births. A 2009 report states that in 2007, 813 births were not yet registered because of missing information about the identity of the mother or the father. In 2015, the UN Committee on the Rights of the Child recommended Switzerland ensure birth registration is available as soon as possible for all children, regardless of their parents’ legal status or origin.
  • An Instruction to the Civil Registry Ordinance on the registration of non-nationals explicitly prohibits public officials from reporting unregistered people to the migration authorities when registering births. A problem can arise if the health insurance of an undocumented person states a false address and this address is reported to the civil registry.
  • Late registration is possible in law and practice and there are no fees or other barriers.
  • There are no government campaigns to promote birth registration for high risk groups. Undocumented migrants are believed to be at risk of births not being registered.

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