Article on the Non-Execution of Deportation Due to Impossibility, Illegality, or Non-Requirement
According to Article 44 of the Asylum Act (LAsi), a rejection of an asylum application or a decision not to process the application generally implies deportation from Switzerland and the execution of this measure. However, it is necessary to verify that the execution of deportation is possible, lawful, and enforceable according to Article 83 of the Foreign Nationals Act (LEI). If this is not the case, the individual benefits from provisional admission (Article 83, para. 1 LEI).
The Notion of Impossibility of Deportation
Article 83, para. 2 LEI stipulates that deportation cannot be executed when the foreign national cannot leave Switzerland for their country of origin, country of departure, or a third country, nor can they be deported to any of these states. In other words, deportation is not possible when it encounters material obstacles, such as the lack of transportation means, the impossibility of obtaining travel documents, or border closures.
The Notion of Unlawfulness of Deportation
Article 83, para. 3 LEI provides that deportation is not lawful when deporting the foreign national to their country of origin, country of departure, or a third country contradicts Switzerland's international legal commitments. It is necessary to check whether the execution of deportation violates the principle of non-refoulement under refugee law or human rights law (Article 33 of the Refugee Convention and Article 3 of the European Convention on Human Rights). If so, the authorities must refrain from executing the deportation.
The principle of non-refoulement under refugee law opposes the removal of a refugee to a country where their life, bodily integrity, or freedom would be threatened due to their race, religion, nationality, membership in a particular social group, or political opinions (Article 33, para. 1 of the Refugee Convention).
The principle of non-refoulement under human rights law (Article 3 ECHR) opposes the removal of any person to a country where they risk suffering acts that violate the prohibition of torture and inhuman or degrading treatment or punishment (Article 3 ECHR). For example, this could involve severe bodily harm, corporal punishment (such as stoning, flogging, or amputation), intolerable detention conditions or interrogation methods, or the death penalty.
According to the jurisprudence of the European Court of Human Rights, deporting a person with terminal AIDS constitutes ill-treatment under Article 3 ECHR if the individual would be left without housing, family, moral or financial support, and without access to appropriate medical treatment in the destination country.
The Notion of Non-Requirement of Deportation
Article 83, para. 4 LEI states that deportation cannot be reasonably required if deporting or expelling the foreign national to their country of origin or departure would put them in concrete danger. Concrete danger occurs, for example, when the country of origin of the individual is experiencing war, civil war, or widespread conflict. In such contexts, we speak of "violence refugees." For the competent authority to refrain from executing deportation, it must be demonstrated that returning to their country of origin or departure would place the individual in a situation of severe distress jeopardizing their existence.
Moreover, certain personal circumstances can lead to concrete danger for the person concerned and thus make the execution of deportation non-requireable. Medical reasons are an example. Only severe medical conditions will be considered. Medical necessity arises when an individual with an asylum claim suffers from a serious physical or mental condition and the treatment and follow-up options in their country of origin are insufficient.
Finally, so-called vulnerable individuals (e.g., single women or single mothers, elderly people, minors, individuals with mental or physical disorders) may, in some cases, be at concrete risk upon return to their country of origin or departure, as the social and socio-political conditions there do not provide them with a stable existence or access to necessary assistance structures. In such cases, deportation should be refrained from, and provisional admission should be granted.
If you find yourself in a problematic situation, the legal consultation service at Valention is available for legal advice.
[1] Asylum and Return Manual, Article E3, deportation, execution of deportation, and granting of provisional admission, section 3.3.
[2] European Court of Human Rights, case D v. the United Kingdom, May 2, 1997, application no. 30240/96, § 52.
[3] Asylum and Return Manual, Article E3, deportation, execution of deportation, and granting of provisional admission, section 3.2.1.1.
[4] Asylum and Return Manual, Article E3, deportation, execution of deportation, and granting of provisional admission, section 3.2.
[5] Asylum and Return Manual, Article E3, deportation, execution of deportation, and granting of provisional admission, section 3.2.2.1.
[6] Asylum and Return Manual, Article E3, deportation, execution of deportation, and granting of provisional admission, section 3.2.2.2.
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