Federal Act
on Foreign Nationals and Integration
(Foreign Nationals and Integration Act, FNIA)¹

Foreign nationals may be admitted to work as an employee if:

1. this is in the interests of the economy as a whole;

2. an application from an employer has been submitted; and

3. the requirements of Articles 20–25 are fulfilled.

Foreign nationals may be admitted to work on a self-employed basis if:

1. this is in the interests of the economy as a whole;

2. the necessary financial and operational requirements are fulfilled;

3. ³⁴they have an adequate and independent source of income; and

4. ³⁵the requirements of Articles 20 and 23–25 are met.

The Federal Council may limit the number of first-time short stay and residence permits (Art. 32 and 33) for work purposes. It shall consult the cantons and the social partners beforehand.

It may define quotas for the Confederation and the cantons.

SEM may, within the federal quota limits, grant first-time short stay and residence permits or increase the cantonal quotas. In doing so, it shall take account of the needs of the cantons and overall economic interests.

Foreign nationals may be permitted to work only if it is proven that no suitable domestic employees or citizens of states with which an agreement on the free movement of workers has been concluded can be found for the job.

Domestic employees include:

1. Swiss nationals;

2. persons with a settlement permit;

3. persons with a residence permit authorising them to work;

4. ³⁶temporarily admitted persons;

5. ³⁷persons who have been granted temporary protection and have a permit entitling them to take up employment.

Foreign nationals with a Swiss university degree may be admitted in derogation from paragraph 1 if their work is of high academic or economic interest. They shall be admitted for a period of six months following completion of their education or training in Switzerland in order to find suitable work.^{38 39}

The Federal Council shall introduce measures to make full use of the Swiss employment market potential. It shall consult the cantons and social partners beforehand.

In the event of an above-average level of unemployment in specific professions, areas of employment or economic regions, temporary measures shall be taken to assist persons who are registered with public employment agencies as seeking employment. The measures may be restricted to specific economic regions.

In the professions, areas of employment or economic regions with an above-average level of unemployment, employers must notify the public employment agencies of vacant positions. Access to information about the notified vacancies shall be restricted for a limited period to persons registered with public employment agencies in Switzerland.

The public employment agency shall within a short period of time provide the employers with the relevant details of persons registered as seeking employment. The employer shall invite suitable candidates for an interview or an aptitude test. The results shall be communicated to the public employment agencies.

Where vacant positions in accordance with paragraph 3 are filled by persons registered as seeking employment with public employment agencies, it is not required to notify the public employment agency of the vacant positions.

The Federal Council may specify additional exceptions to the obligation to give notice of vacant positions in accordance with paragraph 3, in particular in order to take account of the special situation of family businesses or in relation to persons who previously worked for the same employer; before issuing the implementing provisions, it shall consult the cantons and social partners. Furthermore, it shall regularly draw up lists of professions and areas of employment with above-average levels of unemployment in which the obligation to give notice of vacant positions applies.

If the requirements of paragraph 2 are met, a canton may request the Federal Council to introduce an obligation to give notice of vacant positions.

If the measures under paragraphs 1–5 do not achieve the desired effect or should new problems arise, the Federal Council, having consulted the cantons and social partners, shall submit proposals for additional measures to the Federal Assembly. In the event of serious problems, in particular problems caused by cross-border commuters, a canton may request the Federal Council to introduce further measures.

Foreign nationals may only be admitted in order to work if:

1. the salary and employment conditions customary for the location, profession and sector are satisfied; and

2. the level of compensation under paragraph 2 is customary for the location, profession and sector.

The employer shall compensate employees posted to Switzerland for expenses they incur in providing a cross-border service or in connection with a posting as part of an operational transfer, such as travel expenses and board and lodging. These compensation payments are not regarded as part of the salary.

In the case of long-term postings, the Federal Council may issue provisions on the duration of the obligation to compensate under paragraph 2.

Short stay and residence permits for work purposes may only be granted to managers, specialists and other qualified workers.

In deciding whether to grant residence permits, the professional qualifications of applicants and their professional and social adaptability, language skills and age must also indicate that there is a prospect of lasting integration in the Swiss job market and the social environment.

By way of derogation from paragraphs 1 and 2, the following applicants may be admitted:

1. investors and entrepreneurs who maintain existing jobs or create new jobs;

2. recognised persons from the world of science, culture and sport;

3. persons with special professional knowledge or skills, provided there is a need for their admission;

4. persons who are part of an executive transfer between internationally active companies;

5. persons whose activity in Switzerland is indispensable for economically significant international business relationships.

Foreign nationals may only be admitted in order to work if suitable accommodation for them is available.

Foreign nationals may only be admitted as cross-border commuters in order to work if:

1. they have a permanent right of residence in a neighbouring state and they have had their place of residence for a minimum of six months in the neighbouring border zone; and

2. they work within the Swiss border zone.

Articles 20, 23 and 24 do not apply.

Foreign nationals may only be admitted to provide a temporary cross-border service if their activity is in the general interests of the economy.

The requirements of Articles 20, 22 and 23 apply mutatis mutandis.

Foreign nationals may be admitted as religious caregivers or teachers or as teachers of their native language and culture if, in addition to meeting the requirements of Articles 18–24, they:

1. are familiar with the social and legal value system in Switzerland and are capable of imparting this knowledge to the foreign nationals that they care for and teach; and

2. they are able to communicate in the national language spoken at their place of work.

In deciding whether to grant short stay permits, the competent authorities may derogate from the requirement under paragraph 1 letter b.

Foreign nationals may be admitted for education or training purposes if:⁴³

1. the management of the educational establishment confirms that the person concerned is eligible for education or training;

2. suitable accommodation is available;

3. the required financial means are available; and

4. ⁴⁴they fulfil the personal and educational requirements for the planned education or training course.

In the case of minors, their supervision must be guaranteed.

A continued stay in Switzerland following completion or discontinuation of the education or training course is governed by the general admission requirements contained in this Act.⁴⁵

Foreign nationals who are no longer gainfully employed may be admitted if:

1. they have reached a minimum age set by the Federal Council;

2. they have special personal relations to Switzerland; and

3. they have the required financial means.

Foreign nationals may be admitted for medical treatment. Financing and return must guaranteed.

Foreign nationals residing in Switzerland solely in order to seek employment, and their family members, are not entitled to social assistance.

Derogations from the admission requirements (Art. 18–29) are permitted in order to:

1. regulate the employment of foreign nationals admitted under the provisions on family reunification, unless they have a right to work (Art. 46);

2. take account of serious cases of personal hardship or important public interests;

3. regulate the period of stay of foster children;

4. protect persons from exploitation who are particularly at risk in view of their work;

5. ⁴⁷regulate the period of stay of victims and witnesses of trafficking in human beings and of persons who are cooperating with the prosecution authorities as part of a witness protection programme organised by Swiss or foreign authorities or by an international criminal court;

6. permit periods of stay as part of relief and development projects in the interests of economic and technical cooperation;

7. ⁴⁸facilitate international economic, scientific and cultural exchange as well as basic and continuing professional education and training;

8. simplify the transfer of senior management staff and essential specialists within internationally active companies;

9. ⁴⁹...

10. permit au-pair workers recruited through a recognised organisation, to stay in Switzerland period of stay for education and training;

11. facilitate the re-admission of foreign nationals who held a residence or settlement permit;

12. regulate the employment and the participation in employment programmes of asylum seekers (Art. 43 of the Asylum Act of 26 June 1998⁵⁰, AsylA), temporarily admitted persons (Art. 85) and persons in need of protection (Art. 75 AsylA).

The Federal Council shall establish the general conditions and regulate the procedure.

Any person recognised as stateless by Switzerland has the right to a residence permit in the canton in which they are lawfully residing.

If the stateless person satisfies the criteria in Article 83 paragraph 7, the provisions on temporarily admitted persons of Article 83 paragraph 8 apply.

Stateless persons in accordance with paragraphs 1 and 2 and stateless persons who are subject to a legally enforceable order for expulsion from Switzerland under Articles 66a or 66a^bis SCC⁵¹ or Article 49a or 49a^bis MCC⁵², or a legally enforceable expulsion order under Article 68 of this Act may work anywhere in Switzerland.⁵³ Article 61 AsylA⁵⁴ applies by analogy.⁵⁵

In fulfilling their tasks, the Confederation, cantons and communes shall take account of integration concerns and of protection against discrimination.

They shall create favourable regulatory conditions for equal opportunities and for the participation of the foreign population in public life. They shall make use of the potential of the foreign population, take account of diversity and encourage individual responsibility.

They shall in particular encourage foreign nationals to develop their language skills and other basic skills, to advance professionally and to take preventive health care measures; they shall also support efforts that facilitate co-existence and mutual understanding between the Swiss and the foreign population.

The authorities of the Confederation, cantons and communes, social partners, non-governmental organisations and expatriate’ organisations shall cooperate to encourage integration.

The cantonal social assistance authorities shall register recognised refugees and temporarily admitted persons who are unemployed with the public employment agencies.

The Federal Council shall determine which groups of persons require integration support. It shall consult the cantons and the communal associations in advance.

Priority shall be given to addressing the concerns related to the integration of women, children and young people.

Integration support shall be provided within existing standard structures at federal, cantonal and communal level, namely:

1. in pre-school, school and extracurricular care and education services;

2. in the world of work;

3. in social security institutions;

4. in healthcare;

5. in spatial planning, urban and neighbourhood development;

6. in sport, the media and culture.

The specific approaches to encouraging integration at federal, cantonal and communal level shall complement the integration support provided in the standard structures in cases where such support is not accessible or where there are gaps in provision.

The cantons shall provide appropriate integration measures for persons with special integration needs as soon as possible. The Confederation supports the cantons in this task.

The Federal Council shall determine the integration policy within the remit of the Confederation. It shall ensure that the federal offices, together with the competent cantonal authorities, take measures to encourage integration and to prevent discrimination.

SEM shall coordinate the measures by the federal offices to encourage integration and to prevent discrimination, in particular in the areas of social security, vocational education and training, continuing education, and healthcare. The federal offices shall involve SEM in activities that may have an impact on integration.

SEM shall ensure there is an exchange of information and experiences with the cantons, communes and other parties involved.

The cantons shall determine the integration policy within their remit. They shall ensur that the cantonal authorities, together with the competent communal authorities, take measures to encourage integration and to prevent discrimination. They are SEM’s contact points for integration issues and shall ensure there is an exchange of information and experiences with the communes.

In cooperation with the cantons, SEM shall periodically review the integration of the foreign population and guarantee quality assurance in the measures to encourage integration.

The Confederation, cantons and communes shall provide information and advice to foreign nationals on living and working conditions in Switzerland, and in particular on their rights and obligations.

The competent authorities shall provide foreign nationals with information on programmes for encouraging integration.

The cantons are responsible for providing initial information to foreign nationals who have newly arrived from abroad. The Confederation shall support the cantons in this task.

The Confederation, cantons and communes shall inform the population about integration policy and the special situation of foreign nationals.

The Confederation, cantons and communes may delegate the tasks set out in paragraphs 1–4 to third parties.

The Confederation shall grant financial contributions to promote integration in accordance with paragraphs 2 and 3. These contributions supplement the payments made by the cantons to promote integration.

The contributions for temporarily admitted persons, recognised refugees and vulnerable persons with residence permits whose social assistance costs are reimbursed to the cantons by the Confederation under Article 87 of this Act and Articles 88 and 89 of the AsylA⁹⁶ shall be granted to the cantons as flat-rate payments for integration or funding for cantonal integration programmes. They may be made dependent on the achievement of socio-political goals and be restricted to specific groups.

The other contributions shall be granted for funding cantonal integration programmes and programmes and projects of national importance that help to promote the integration of foreign nationals irrespective of their status. The coordination and conduct of programme and project activities may be delegated to third parties.

The Federal Council shall fix the level of the federal contributions under paragraphs 2 and 3.

The Federal Council, in consultation with the cantons, shall indicate the areas requiring aid and regulate the details of the procedure under paragraphs 2 and 3.

When assessing integration, the competent authority shall take the following criteria into account:

1. respect for public safety, security and order;

2. respect for the values of the Federal Constitution;

3. language skills; and

4. participation in working life or efforts to acquire an education.

Due account shall be taken of the situation of persons who because of disability or illness or other important personal circumstances are unable to meet or have difficulty meeting the integration criteria referred to in paragraph 1 letters c and d.

The Federal Council shall determine which language skills are required when granting or renewing a permit.

The integration agreement sets out the objectives, measures and time frame for individually agreed integration support. It also regulates financing.

In particular, it may contain objectives for acquiring language skills, for integration at school or at work, for economic integration and for acquiring knowledge of living conditions, the economic system and the legal system in Switzerland.

If the competent authorities require the conclusion of an integration agreement, the residence permit shall not be issued or renewed until the agreement has been concluded.

The competent authorities may issue recommendations to persons to whom Article 2 paragraphs 2 and 3 and Article 42 apply.

The Confederation may facilitate the independent and proper exit of foreign nationals by providing return and reintegration assistance.

The following persons may claim return and reintegration assistance:

1. persons who left their native country or country of origin due to a serious general danger, in particular due to war, civil war, or a situation of general violence or were unable to return there for the duration of the danger, provided their residency was regulated in accordance with this Act and they have been required to leave Switzerland;

2. persons covered by Article 30 paragraph 1 letters d and e;

3. ¹¹⁴temporarily admitted persons who have left Switzerland of their own volition or whose temporary admission has been revoked in accordance with Article 84 paragraph 2.

Return and reintegration assistance includes:

• a. return counselling in accordance with Article 93 paragraph 1 letter a AsylA¹¹⁵;

• abis. access to projects in Switzerland aiming to preserve the ability to return in accordance with Article 93 paragraph 1 letter b AsylA;

• b. participation in projects in the native country, country of origin or third country that facilitate return and reintegration in accordance with Article 93 paragraph 1 letter c AsylA;

• c. financial support in individual cases to facilitate integration or to provide medical care in the native country, country of origin or third country in accordance with Article 93 paragraph 1 letter d AsylA.¹¹⁶

The Federal Council shall regulate the requirements and the procedure regarding the payment and accounting of the contributions.

A permit expires:

1. on notice of departure abroad;

2. on the grant of a permit in another canton;

3. on the expiry of the term of validity of the permit;

4. on expulsion in terms of Article 68;

5. ¹¹⁸on the holder becoming subject to a legally enforceable order for expulsion from Switzerland under Article 66a SCC¹¹⁹ or Article 49a MCC¹²⁰;

6. ¹²¹on the enforcement of an order for expulsion from Switzerland under Article 66a^bis SCC or 49a^bis MCC.

If a foreign national leaves Switzerland without giving notice of departure, a short stay permit expires after three months, and a residence or settlement permit after six months. On request, a settlement permit may remain valid for a further four years.

The right of residence of citizens of EU and EFTA member states with a short-stay permit shall expire six months after the involuntary termination of their employment. The right of residence of citizens of EU and EFTA member states with a residence permit shall expire six months after the involuntary termination of their employment if employment ends within the first twelve months of their residence.

If unemployment benefit continues to be paid on expiry of the six-month period in accordance with paragraph 1, the right of residence expires when the benefit is no longer paid.

There is no right to social assistance in the period from the termination of employment until the expiry of the right of residence in accordance with paragraphs 1 and 2.

In the event of involuntary termination of employment following the first twelve months of residence, the right of residence of citizens of EU and EFTA member states with a residence permit expires six months after the termination of their employment. If unemployment benefit continues to be paid on expiry of this six-month period, the right of residence expires six months after the benefit is no longer paid.

Paragraphs 1–4 do not apply in the event of termination of employment due to temporary unfitness for work because of illness, accident or invalidity, nor in the case of persons who hold a right to remain under the Agreement of 21 June 1999¹²³ on Freedom of Movement (AFMP) between the Swiss Confederation on the one hand and the European Community and their Member States on the other or under the Convention of 4 January 1960¹²⁴ establishing the European Free Trade Association (EFTA Convention).

The competent authority may revoke permits, with the exception of a settlement permit, and other rulings under this Act if the foreign national:

1. or their representative in the permit procedure makes false statements or conceals material facts;

2. has been given a long custodial sentence or has been made subject to a criminal measure in terms of Articles 59^–61 or 64 of the SCC¹²⁶;

3. has seriously or repeatedly violated or represents a threat to public security and order in Switzerland or abroad or represents a threat to internal or external security;

4. fails to fulfil an obligation linked to the decision;

5. or a person they must care for is dependent on social assistance;

6. ¹²⁷has attempted to obtain Swiss citizenship unlawfully or his or her Swiss citizenship has been revoked based on a legally binding ruling issued in connection with a declaration of nullity under Article 36 of the Swiss Citizenship Act of 20 June 2014¹²⁸;

7. ¹²⁹does not comply with an integration agreement without due cause.

Revocation is not permitted if justified solely by conviction for an offence for which a sentence or measure has been imposed, where the court has refrained from imposing an order for expulsion from Switzerland.

A settlement permit may be revoked only if:

1. ¹³⁰the requirements of Article 62 paragraph 1 letter a or b are fulfilled;

2. the foreign national has seriously violated or represents a threat to public security and order in Switzerland or abroad or represents a threat to internal or external security;

3. the foreign national or a person they must care for is dependent permanently and to a large extent on social assistance;

4. ¹³¹the foreign national has attempted to obtain Swiss citizenship unlawfully or his or her Swiss citizenship has been revoked based on a legally binding ruling issued in connection with a declaration of nullity under Article 36 of the Swiss Citizenship Act of 20 June 2014 ¹³²;

5. ¹³³...

A settlement permit may be revoked and replaced by a residence permit if the residence criteria referred to in Article 58a have not been met.¹³⁴

Revocation is not permitted if justified solely by conviction for an offence for which a sentence or measure has been imposed, where the court has refrained from imposing an order for expulsion from Switzerland.¹³⁵

The competent authorities shall issue an ordinary return decision if:

1. a foreign national does not possess a required permit;

2. a foreign national does not fulfil or no longer fulfils the entry requirements (Art. 5);

3. a foreign national is refused a permit, or the permit is revoked or not extended following a permitted period of stay.

Where foreign nationals who are illegally resident in Switzerland hold a valid residence document for another State that is bound by one of the Schengen-Association Agreements¹³⁷ (a Schengen State), they must be requested without any formal procedure to proceed immediately to that State. If they fail to comply with this request, a decision in accordance with paragraph 1 must be issued. If immediate departure is required on grounds of public security and order or internal or external security, a decision must be issued without a prior request to leave.

An appeal against decisions under paragraph 1 letters a and b must be filed within five working days of notification of the decision. The appeal does not have suspensive effect. The appellate authority shall decide within ten days on whether suspensive effect will apply.

The competent cantonal authorities shall immediately appoint a representative for any unaccompanied minor foreign national to safeguard the minor's interests during the return proceedings.

The Federal Council shall determine the role, responsibilities and duties of the representative mentioned in paragraph 4.¹³⁸

If a different state that is bound by one of the Dublin Association Agreements (para. 4) is responsible for conducting an asylum or return procedure on the basis of Regulation (EC) No. 604/2013¹⁴⁰ (Dublin State), SEM shall issue a return decision against a person who is residing illegally in Switzerland.¹⁴¹

An appeal must be filed within five working days of notification of the decision. The appeal does not have suspensive effect. The foreign national may apply for the order to be suspended within the deadline for filing the appeal. The Federal Administrative Court shall decide on the matter within five days of receipt of the application. If the removal is not suspended within this period, it may be enforced.

The canton of residence of the foreign national concerned is responsible for the enforcement of the removal and, if necessary, for the payment and funding of social and emergency assistance.

In the case of unaccompanied minors, Article 64 paragraph 4 applies.¹⁴²

The Dublin Association Agreements are listed in Annex 1 no 2.

Where a person has entered Switzerland illegally, they are notified of the return decision by means of a standard form.

Foreign nationals shall be removed without being subjected to any formal procedure if:

1. they are being readmitted by Belgium, Germany, Estonia, France, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Austria, Poland, Sweden, Slovakia, Slovenia, Spain or Hungary on the basis of a readmission agreement;

2. ¹⁴⁵they have been refused entry previously in accordance with Article 14 of the Schengen Borders Code¹⁴⁶.

If requested immediately by the person concerned, a decision shall be issued on a standard form (Art. 64b).

On issuing the return decision, an appropriate departure deadline of between seven and thirty days must be set. A longer period must be set or the departure deadline extended if special circumstances such as the family situation, health problems or a long period of stay so require.

The return decision shall be immediately enforceable or a departure deadline less than seven days hence may be set where:

1. the person concerned represents a threat to public security and order or represents a threat to internal or external security;

2. specific indications lead to the belief that the person concerned intends to evade deportation;

3. an application for a permit is refused on the basis that it is clearly unjustified or an abuse of procedure;

4. the person concerned is being readmitted by a State under Article 64c paragraph 1 letter a on the basis of a readmission agreement;

5. ¹⁴⁸the person concerned was previously refused entry in accordance with Article 14 of the Schengen Borders Code¹⁴⁹ (Art. 64c para. 1 let. b);

6. the person concerned is being removed under the Dublin Association Agreements (Art. 64a).

The following specific indications in particular lead to the belief that a person intends to evade deportation:

1. The person fails to cooperate in accordance with Article 90.

2. The person’s previous conduct leads to the conclusion that they wish to defy official orders.

3. The person enters Swiss territory despite a ban on entry.¹⁵⁰

On giving notice of a return decision, the competent authority may require the foreign national concerned:

1. to report to an authority regularly;

2. to provide appropriate financial security;

3. to hand in travel documents.

The competent authority shall ensure that, if requested, the return decision is translated in writing or verbally into a language understood by the person concerned or which he or she may be assumed to understand.

If notice is given of the return decision by means of a standard form under Article 64b, no translation is made. The person concerned shall be provided with an information sheet with an explanation of the return decision.

If entry is refused at the border control at the airport, the foreign national must leave Switzerland immediately.

The authority responsible for the border control shall on SEM’s behalf issue a reasoned and appealable decision within 48 hours on a form in accordance with Annex V Part B of the Schengen Borders Code¹⁵⁴. A written objection may be filed with SEM against this decision within 48 hours of notification thereof. The objection does not have suspensive effect. SEM shall decide on the objection within 48 hours.¹⁵⁵

An appeal may be filed against SEM’s objection decision within 48 hours of notification thereof. The appeal does not have suspensive effect. The appellate authority shall decide on the appeal within 72 hours.¹⁵⁶

Persons subject to return are permitted to remain in the airport international transit zone for a maximum of 15 days in order to prepare for their onward journey, provided deportation (Article 69) or detention pending deportation or coercive detention (Art. 76, 77 and 78) is not ordered. The provisions on temporary admission (Article 83) and on the filing of an asylum application (Article 22 AsylA¹⁵⁷) are reserved.¹⁵⁸

SEM shall, subject to paragraph 5, order a ban on entry against foreign nationals who have been issued with a return decision if:

1. the return decision may be enforced immediately in accordance with Article 64d paragraph 2 letters a–c;

2. the person does not leave by the appointed deadline;

3. the person has violated or represents a threat to public security and order in Switzerland or abroad; or

4. the person has been convicted of an offence or of an attempted offence under Article 115 paragraph 1, 116, 117 or 118.¹⁶¹

A ban on entry may be ordered against foreign nationals who:

1. have incurred social assistance costs;

2. have had to be taken into detention in preparation for departure or pending deportation or have been placed in coercive detention (Art. 75–78).¹⁶²

The ban on entry shall be ordered for a maximum duration of five years. It may be ordered for a longer period if the person concerned represents a serious risk to public security or order.

The Federal Office of Police (fedpol) may order a ban on the entry of any foreign national in order to safeguard Switzerland’s internal or external security; it shall consult the Federal Intelligence Service (FIS) beforehand. fedpol may order a ban on entry for a period of more than five years or in serious cases for an unlimited period.

The authority issuing the ban on entry may by way of exception refrain from imposing a ban on entry on humanitarian grounds or for other good cause or revoke the ban permanently or temporarily. In reaching its decision, the authority must in particular consider whether grounds for issuing the ban on entry and the need to protect public security and order and to safeguard Switzerland’s internal or external security outweigh the private interests of the person concerned in not being subject to the ban.¹⁶³

fedpol may order the expulsion of a foreign national in order to safeguard the internal or the external security of Switzerland; it shall consult the FIS beforehand.¹⁶⁴

In cases of expulsion, an appropriate departure deadline must be set.

An expulsion order shall be combined with a limited or unlimited ban on entry. The authority issuing the order may temporarily revoke the ban on entry for good cause.

If the person concerned has seriously or repeatedly violated or represents a threat to public security and order or represents a threat to internal or external security, expulsion may be enforced immediately.

The competent authority shall enter in the Schengen Information System (SIS) the data on third-country citizens subject to any of the following return decisions:

1. a return decision in accordance with Article 64;

2. an expulsion order in accordance with Article 68;

3. an order for expulsion from Switzerland in accordance with Article 66a or 66a^bis SCC¹⁶⁶ or Article 49a or 49a^bis MCC¹⁶⁷ where enforcement has been ordered;

4. a return decision where enforcement has been ordered in accordance with Articles 44 and 45 AsylA¹⁶⁸.

Data on third-country citizens against whom bans on entry in accordance with Articles 67 and 68 paragraph 3 and an order for expulsion from Switzerland have been issued shall entered by the competent authority in the SIS provided the requirements of Regulation (EU) 2018/1861¹⁶⁹ have been met.¹⁷⁰

SEM may supply biometric data to the SIS that is already available in the automated fingerprint identification system under Article 354 SCC (AFIS) or in ZEMIS. The supply of data may be automated.

The competent authorities for issuing an alert on decisions in accordance with paragraphs 1 and 2 shall record in ZEMIS the personal data of the person to whom the alert relates. If the facial image and the fingerprints are not already available, they shall record these data in AFIS for delivery to the SIS or have the data recorded there by the authorities entitled to do so.

In connection with its alerts, fedpol may supply biometric data to the SIS that is already available in the AFIS. The supply of data may be automated. If no biometric data are available, fedpol may order the retroactive recording of the data from the authorities that detect a hit on these alerts.

The Federal Council shall regulate the procedure and responsibilities for recording and transmitting the data in accordance with paragraphs 1–5 for the purpose of alerts in the SIS. It may provide for exceptions to the requirement to record and deliver data with regard to biometric data.

Additional information in connection with an alert in accordance with Article 68a paragraphs 1 and 2 shall be exchanged between the Schengen States via the contact, coordination and consultation point for the exchange of information in connection with alerts in the SIS (SIRENE Office).

If the Federal Office for Customs and Border Security¹⁷² and the cantonal police authorities responsible for controlling the Schengen external borders or in Switzerland establish that a third-country national subject to an alert from another Schengen State for the purpose of return has not complied with their obligation to return, they shall notify the SIRENE Office.

If a consultation with the competent authorities of other Schengen States is required in connection with an alert in the SIS, this shall take place via the SIRENE Office.

If the third-country national subject to an alert in the SIS from another Schengen State for the purpose of return leaves the Schengen area, the competent border control authority shall issue a confirmation of return to the SIRENE Offices. The SIRENE Office shall transmit the confirmation to the Schengen State issuing the alert for the purpose of deleting the alert for return in the SIS.

The SIRENE Office shall forward confirmations of return from other Schengen States to the authority issuing the alert in Switzerland for the purpose of deleting the alert.

Alerts in accordance with Article 68a paragraph 1 shall be deleted by the authority issuing the alert as soon as:

1. the person subject to the alert has left the Schengen area from another Schengen State;

2. the decisions have been revoked or cancelled; or

3. it is known that the person concerned has become a citizen of an EU/EFTA State.

The deleting of alerts on return in the SIS in accordance with Article 68a paragraph 1 shall be carried out by the competent border control authority as soon as the person subject to the alert leaves the Schengen area via Switzerland.

Alerts for refusal of entry or stay in accordance with Article 68a paragraph 2 shall be deleted by the authority issuing the alert as soon as:

1. the term of the ban on entry or of the order for expulsion from Switzerland has expired;

2. the decisions have been revoked or cancelled; or

3. it is known that the person concerned has become a citizen of an EU/EFTA State.

When deleting alerts on return in accordance with paragraph 1 letter a or paragraph 2, if applicable an alert for refusal of entry or stay shall be immediately activated in the SIS.

The data stored in the SIS and the related supplementary information shall not be transmitted to third countries, international organisations, private bodies or natural persons.

SEM may transmit these data and information to a third country if, in relation to the return of a person from a third country who is staying illegally in Switzerland, this person is to be identified or issued with a travel document or identity document, provided the State issuing the alert has given its consent and the requirements of Article 15 of the Regulation (EU) 2018/1860¹⁷⁶ have been met.¹⁷⁷

The competent cantonal authority shall deport foreign nationals if:

1. they fail to comply with the departure deadline;

2. if their removal or expulsion may be enforced immediately;

3. ¹⁷⁹they are being held in detention in accordance with Articles 76 and 77 and a legally binding expulsion order, a return decision or a legally binding decision on expulsion under Article 66a or 66a^bis SCC¹⁸⁰ or Article 49a or 49a^bis MCC¹⁸¹ has been issued.

In the case of foreign nationals who are able to travel lawfully to more than one state, the competent authority may deport them to the country of their choice.

The competent authority may postpone deportation for an appropriate period if special circumstances such as the ill-health of the person concerned or a lack of transport so require. The competent authority shall confirm the postponement of deportation to the person concerned in writing.¹⁸²

The competent authority shall ensure before the deportation of unaccompanied foreign minors that he or she will be returned in the State of return to a family member, a nominated guardian or reception facilities that guarantee the protection of the child.¹⁸³

During expulsion or return proceedings, the competent cantonal authority may arrange for the person concerned as well as the belongings they are carrying to be searched in order to seize travel and identity documents. The search may be conducted only by a person of the same sex.

If the court of first instance has issued a decision, the judicial authority may order a search of a dwelling or of other premises if it is suspected that a person subject to a return decision or expulsion order may be hiding there, or that travel and identity documents required for the procedure and enforcement are hidden there.¹⁸⁴

The Federal Department of Justice and Police (FDJP) shall support the cantons responsible for enforcing the removal or the expulsion of foreign nationals or the enforcement of an order for expulsion from Switzerland under Article 66a or 66a^bis SCC¹⁸⁵ or Article 49a or 49a^bis MCC¹⁸⁶, in particular by:¹⁸⁷

1. assisting in obtaining travel documents;

2. making travel arrangements;

3. ¹⁸⁸ensuring cooperation between the cantons concerned and the FDFA.

In fulfilling its tasks under paragraph 1, in particular letters a and b, the FDJP may work with the European Union agency responsible for the surveillance of the Schengen external borders.¹⁸⁹

SEM and the cantons shall work together in the case of international return interventions on the basis of Regulation (EU) 2019/1896¹⁹¹; they shall provide the required personnel. The Confederation shall make compensatory payments to the cantons for these interventions. The Federal Council shall regulate the amount and modalities of these compensatory payments.¹⁹²

The FDJP may enter into agreements with the competent European Union agency for the surveillance of the Schengen external borders relating to the deployment of personnel from SEM and the cantons in connection with international return interventions and the deployment of third parties to monitor removals.

The FDJP shall enter into an agreement with the cantons on the modalities of the deployment of personnel.

The Federal Council shall regulate the procedure and the responsibilities for supervising deportation procedures and international return interventions.

It may delegate tasks relating to the supervision of deportation procedures and international return interventions to third parties.

The attending medical professional shall on request disclose the medical data required to assess the fitness to travel of persons subject to a legally binding return decision or expulsion order to the following authorities insofar as these authorities require the data to fulfil their statutory duties:

1. the cantonal authorities responsible for removal or expulsion;

2. employees of SEM who are responsible for the centralised organisation and coordination of the compulsory execution of return decisions and expulsion orders;

3. the medical professionals responsible on behalf of SEM for medical supervision on execution of return decisions and expulsion orders at the time of departure.

The Federal Council regulates the retention and deletion of the data.

The competent authority of the Confederation or the canton may detain persons who do not hold a short stay, residence or settlement permit:

1. to notify them of a decision in connection with their residence status;

2. to determine their identity or nationality, as far as their personal cooperation is required;

3. ¹⁹⁶in order to ensure their handover to the competent authorities in a neighbouring State based on a readmission agreement.

Persons may be detained only for the duration of the required cooperation or questioning and the required transport if necessary, or until their handover to the competent authorities in a neighbouring State, and for a maximum of three days.¹⁹⁷

If a person is detained, they must:

1. be informed of the reason for their detention;

2. be permitted to contact the persons guarding them if they require help.

If detention is expected last longer than 24 hours, the person concerned shall be given the opportunity beforehand to attend to or have someone else attend to urgent personal matters.

On request, the competent judicial authority must review the legality of the detention.

The duration of detention shall not be deducted from the duration of any detention pending deportation, in preparation for departure, or coercive detention.

The competent cantonal authority may require a person not to leave the area they were allocated to or not to enter a specific area if:

1. they do not hold a short stay, residence or settlement permit and they disrupt or represent a threat to public security and order; this measure serves in particular to combat illegal drug trafficking; or

2. ¹⁹⁸they are subject to a legally binding expulsion order or return decision and specific indications lead to the belief that the person concerned will not leave before the departure deadline or has failed to observe the departure deadline.

3. ¹⁹⁹deportation has been postponed (Art. 69 para. 3).

The competent cantonal authority shall require a person who is accommodated in a special centre under Article 24a AsylA²⁰⁰ not to leave the area they were allocated to or not to enter a specific area.²⁰¹

These measures shall be ordered by the authority of the canton that is responsible for the implementation of removal or expulsion. In the case of persons staying in federal centres, the canton where the centre is located is responsible. The prohibition from entering a specific area may also be issued by the authority of the canton where this area is located.²⁰²

Appeals may be lodged with a cantonal judicial authority against the ordering of these measures. The appeal has no suspensive effect.

To facilitate the conduct of return or expulsion proceedings or criminal proceedings in which the potential penalty includes an order for expulsion from Switzerland under Article 66a or 66a^bis SCC²⁰³ or Article 49a or 49a^bis MCC²⁰⁴, the competent cantonal authority may detain a person who does not hold a short stay, residence or settlement permit for a maximum of six months while preparing to decide on that person’s residence status if that person:²⁰⁵

1. ²⁰⁶refuses during asylum proceedings, return or expulsion proceedings or criminal proceedings in which the potential penalty includes an order for expulsion from Switzerland under Article 66a or 66a^bis SCC or Article 49a or 49a^bis MCC to disclose their identity, submits several applications for asylum using various identities, or repeatedly fails to comply with a summons without sufficient reason or ignores other instructions issued by the authorities in the asylum procedure;

2. leaves an area allocated to them in accordance with Article 74 or enters an area from which they are excluded;

3. enters Swiss territory despite a ban on entry and cannot be immediately removed;

4. has been made subject to a return decision or expulsion order and has submitted an application for asylum following the legally binding revocation (Art. 62 and 63) or non-renewal of the permit because they have violated or represent a threat to public security and order or because they represent a threat to internal or external security;

5. submits an application for asylum after expulsion (Art. 68);

6. stays unlawfully in Switzerland and submits an application for asylum with the obvious intention of avoiding the imminent enforcement of a return decision or expulsion order; such an intention shall be suspected if it were possible and reasonable to file the asylum application earlier and if the application is submitted in close chronological relation to detention, criminal proceedings, the enforcement of a penalty or the issue of a return decision;

7. seriously threatens other persons or significantly endangers the life and limb of other persons and is therefore being prosecuted or has been convicted;

8. has been convicted of a felony;

9. ²⁰⁷is a risk to Switzerland’s internal or external security according to findings made by fedpol or the FIS.

...²⁰⁸

The competent authority shall decide on the residence status of the person held in detention without delay.

If the court of first instance has issued an expulsion order or return decision or an order for expulsion from Switzerland under Article 66a or 66a^bis SCC²⁰⁹ or Article 49a or 49a^bis MCC²¹⁰, the competent authority may ensure the enforcement of the decision by:²¹¹

1. leaving the person concerned in detention if, based on Article 75, they are already in detention;

2. detaining the person concerned if:

   1. ²¹²there are grounds for doing so in terms of Article 75 paragraph 1 letters a, b, c, f, g, h or i,

   2. ²¹³...

   3. ²¹⁴specific indications lead to the belief that they are seeking to evade deportation, in particular because they fail to comply with the obligation to cooperate in accordance with Article 90 of this Act and Article 8 paragraph 1 letter a or Article 47 paragraph 1 AsylA²¹⁵,

   4. their previous conduct leads to the conclusion that they will refuse to comply with official instructions,

   5. ²¹⁶the return decision is issued in a federal centre and enforcement of the removal is imminent.

   6. ²¹⁷...

The detention order in Dublin cases is governed by Article 76a.²¹⁸

Detention in terms of paragraph 1 letter b number 5 may last a maximum of 30 days.²¹⁹

The days in detention count towards the maximum duration in terms of Article 79.²²⁰

The required arrangements for the enforcement of the removal, expulsion or the order for expulsion from Switzerland under Article 66a or 66a^bis SCC or Article 49a or 49a^bis MCC must be taken without delay.²²¹

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:

1. there are specific indications that the person intends to evade removal;

2. detention is proportional; and

3. less coercive alternative measures cannot be applied effectively (Art. 28 para. 2 of the Regulation [EU] No 604/2013²²³).

The following specific indications suggest that the person concerned intends to evade removal:

1. The person concerned disregards official orders in the asylum or return 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 AsylA²²⁴ or by repeatedly failing to comply with a summons without sufficient excuse.

2. Their conduct in Switzerland or abroad leads to the conclusion that they wish to defy official orders.

3. They submit two or more asylum applications under different identities.

4. They leave the area that they are allocated to or enter an area from which they are excluded under Article 74.

5. They enter Swiss territory despite a ban on entry and cannot be removed immediately.

6. They stay unlawfully in Switzerland and submit an application for asylum with the obvious intention of avoiding the imminent enforcement of removal.

7. They seriously threaten other persons or considerably endanger the life and limb of other persons and are therefore being prosecuted or have been convicted.

8. They have been convicted of a felony.

9. 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.

10. ²²⁵They are a risk to Switzerland’s internal or external security according to findings made by fedpol or the FIS.

The person concerned may remain or be placed in detention from the date of the detention order for a maximum duration of:

1. 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;

2. five weeks during proceedings under Article 5 of Regulation (EC) No 1560/2003²²⁶;

3. six weeks to ensure enforcement from notice being given of the return or expulsion decision or the date on which the suspensive effect of any appeal against a first instance decision on return or expulsion ceases to apply and the transfer of the person concerned to the competent Dublin State.

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.

The days in detention count towards the maximum duration in terms of Article 79.

The competent cantonal authority may detain a person to ensure the enforcement of their removal or expulsion if:

1. an enforceable decision has been made;

2. they have not left Switzerland by the appointed deadline; and

3. the cantonal authority has had to obtain travel documents for this person.

Detention may last a maximum of 60 days.

The required arrangements for the enforcement of the removal or expulsion must be made without delay.

If a person does not fulfil their obligation to leave Switzerland by the appointed deadline and if the legally enforceable return decision or expulsion order or legally enforceable order for expulsion from Switzerland under Article 66a or 66a^bis SCC²²⁷ or Article 49a or 49a^bis MCC²²⁸ cannot be enforced due to their personal conduct, they may be detained to ensure that the obligation to leave Switzerland is complied with, provided it is not permitted to order detention pending deportation and a more lenient measure would not achieve what is required.²²⁹

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.²³⁰

Detention and its extension are ordered by the authorities of the canton which is responsible for enforcing the return decision 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.²³¹

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.

The conditions of detention are governed by Article 81.

The detention order is revoked if:

1. 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;

2. they leave Switzerland as ordered;

3. detention pending deportation is ordered;

4. a request for release from detention is granted.

Detention in preparation for departure, detention pending deportation in accordance with Articles 75–77 and coercive detention in accordance with Article 78 must not together exceed the maximum term of detention of six months.

The maximum term of detention may be extended with the consent of the cantonal judicial authority for a specific period, but in no case for more than twelve months and in the case of minors aged between 15 and 18, by a maximum of six months where:

1. the person concerned fails to cooperate with the competent authority;

2. the provision of the documents required for departure by a State that is not a Schengen State is delayed.

Detention shall be ordered by the authorities of the canton responsible for enforcing the return decision or expulsion order. In the case of persons staying in federal centres, the canton where the centre is located is responsible for ordering detention in preparation for departure.²³³

In cases under Article 76 paragraph 1 letter b number 5, detention is ordered by the canton in which the federal centres are located; if in accordance with Article 46 paragraph 1^bis third sentence AsylA²³⁴ a canton other than the canton where the centres are located is responsible for enforcing removal, that canton is also responsible for ordering detention.²³⁵

The legality and the appropriateness of detention must be reviewed at the latest within 96 hours by a judicial authority on the basis of an oral hearing. If detention pending deportation has been ordered in accordance with Article 77, the detention review procedure shall be carried out in writing.²³⁶

In the case of detention under Article 76 paragraph 1 letter b number 6, the legality and the appropriateness of detention shall be reviewed at the request of the detainee by a judicial authority in a written procedure. This review may be requested at any time.²³⁷

The judicial authority may dispense with an oral hearing if deportation is anticipated within eight days of the detention order and the person concerned has expressed their consent in writing. If deportation cannot be carried out by this deadline, an oral hearing must be scheduled at the latest twelve days after the detention order.

When reviewing the decision to issue, extend or revoke a detention order, the judicial authority shall also take account of the detainee’s family circumstances and the circumstances behind the enforcement of detention. In no event may any detention order in preparation for departure, detention pending deportation or coercive detention be issued in respect of children or young people who have not yet attained the age of 15.²³⁸

The detainee may submit a request for release from detention one month after the detention review. The judicial authority must issue a decision on the request on the basis of an oral hearing within eight working days. A further request for release in the case of detention in accordance with Article 75 may be submitted after one month or in the case of detention in accordance with Article 76, after two months.

The detention order shall be revoked if:

1. the reason for detention ceases to apply or the return decision or expulsion order proves to be unenforceable for legal or practical reasons;

2. a request for release from detention is granted; or

3. the detainee becomes subject to a custodial sentence or measure.

The following authorities are responsible for issuing detention orders under Article 76a:

1. ²⁴⁰in the case of persons accommodated in a federal centre: the canton responsible for enforcing removal under Article 46 paragraph 1^bis third sentence AsylA²⁴¹, and in other cases the canton in which the federal centre is located;

2. in the case of persons that have been allocated to a canton or resident in a canton who have not submitted an asylum application (Art. 64a): the canton concerned.

...²⁴²

The legality and appropriateness of detention shall be reviewed at the request of the detainee by a judicial authority in a written procedure. This review may be requested at any time.²⁴³

The detainee may apply for release from detention at any time. The judicial authority must decide on the application within eight working days in a written procedure.

The detention of children and young persons under 15 years of age is not permitted.

In the case of a detention order in respect of an unaccompanied minor seeking asylum, the representative under Article 64a paragraph 3^bis of this Act or under Article 17 paragraph 3 AsylA will be informed in advance.

The detention order shall be revoked if:

1. the reason for detention ceases to apply or the return decision or expulsion order proves to be unenforceable for legal or practical reasons;

2. a request for release from detention is granted;

3. the detainee becomes subject to a custodial sentence or measure.

When reviewing the decision to issue, extend or revoke a detention order, the judicial authority shall also take account of the detainee’s family circumstances and the circumstances behind the enforcement of detention.

The cantons shall ensure that a person in Switzerland designated by the detainee is notified. Detainees may communicate with their legal representatives as well as with their family members and consular authorities both verbally and in writing.

Detention shall take place in detention facilities intended for the enforcement of preparatory detention, detention pending deportation and coercive detention. If this not possible in exceptional cases, in particular because of insufficient capacity, detained foreign nationals must be accommodated separately from persons in pre-trial detention or who are serving a sentence.²⁴⁵

The needs of vulnerable persons, unaccompanied minors and families with minor children must be taken into account in the detention arrangements.²⁴⁶

The detention arrangements are otherwise governed by:

1. Article 16 paragraph 3 and 17 of Directive 2008/115/EC²⁴⁷ for removals to a third country;

2. Article 28 paragraph 4 of Regulation (EU) No 604/2013²⁴⁸ for Dublin transfers;

3. ²⁴⁹in accordance with Article 37 of the Convention of 20 November 1989²⁵⁰ on the Rights of the Child.²⁵¹

The competent authority may order that the opportunities for detainees to have contact with specific persons or groups either directly or via third parties be restricted if:

1. the person concerned according to findings made by the police or prosecution authorities poses a specific risk to internal or external security; and

2. other measures have failed or are not available.²⁵²

If the restrictions under paragraph 5 prove inadequate to counter the risk to internal or external security, the competent authority may order solitary confinement.²⁵³

The Confederation may wholly or partially finance the construction or establishment of cantonal detention centres that are used exclusively for detaining persons in preparation for departure or pending deportation, or placing persons in coercive detention or for short-term detention and which are of a certain size. The calculation of contributions and the procedure are governed mutatis mutandis by Sections 2 and 6 of the Federal Act of 5 October 1984²⁵⁵ on Federal Subsidies for the Execution of Sentences and Measures.

The Confederation shall contribute to the cantons’ operating costs for detaining persons in preparation for departure or pending deportation, or placing persons in coercive detention by making a flat-rate daily payment. The flat-rate payment shall be made in the case of:

1. asylum seekers;

2. refugees and other foreign nationals who are detained in connection with the revocation of temporary admission;

3. foreign nationals whose detention has been ordered by SEM in connection with a return decision;

4. refugees who are expelled in accordance with Article 65 AsylA²⁵⁶.

The Confederation may contribute for a limited period in the form of a daily allowance to the operating costs of the temporary detention of persons in accordance with Article 73 paragraph 1 letter c. A financial contribution requires that:

1. the person concerned is detained in a cantonal departure centre in the border zone;

2. the number of illegal border crossings and checks on persons in the border zone concerned is exceptionally high; and

3. the cantonal departure centre is used for the short-term accommodation of foreign nationals who have been detained on entering the border zone concerned illegally and whose removal without formal procedure has been ordered in accordance with Article 64c paragraph 1 letter a.²⁵⁷

Foreign nationals must be in possession of a valid identity document recognised in terms of Article 13 paragraph 1 during their stay in Switzerland.

Foreign nationals and third parties involved in proceedings under this Act are obliged to cooperate in determining the relevant circumstances necessary to apply this Act. They must in particular:

1. provide accurate and complete information about circumstances, which are essential for the regulation of the period of stay;

2. submit the required evidence without delay or make every effort to obtain it within a reasonable period;

3. obtain identity documents (Art. 89) or assist the authorities in obtaining these documents.

Before a foreign national begins employment, an employer must inspect their identity card or check with the competent authorities to ascertain that the said foreign national is entitled to work in Switzerland.

Any person who obtains a cross-border service must inspect the identity card of the person providing the service or check with the competent authorities to ascertain that this person is entitled to work in Switzerland.

Air carriers transporting persons must take all reasonable measures to ensure that they only transport persons who possess the required travel documents, ETIAS travel authorisations, visas and residence documents to enter the Schengen area or to travel through international transit zones of the airports.³¹²

The Federal Council shall regulate the extent of the duty of care.

In order to improve border controls and to combat unlawful entry into the Schengen area and transit through the international transit zones of the airports, at the request of the border control authorities SEM may require air carriers to provide personal data on the passengers it is carrying and data on the flight to SEM or to the authority responsible for the border controls. The data must be transmitted immediately after departure.³¹⁴

SEM may extend the duty to provide data to other flights:

1. at the request of fedpol: to combat international organised crime and terrorism;

2. at the request of the FIS: to respond to threats to internal and external security that arise from terrorism, espionage and preparations for illegal trading in weapons and radioactive materials and illegal technology transfers.³¹⁵

The data must be transmitted immediately after departure.³¹⁶

The order to provide data must contain:

1. the airports or states of departure;

2. the data categories in accordance with paragraph 3;

3. the technical details on data transmission.

The duty to provide data applies to the following data categories:

1. biographical data (surname, first name(s), sex, date of birth, nationality) of the persons being carried;

2. number, issuing state, type and expiry date of the travel document held;

3. number, issuing state, type and expiry date of the visa or residence document held provided the air carrier has this data;

4. airport of departure, transfer airports or airport of destination in Switzerland, together with details of the flight itinerary booked for the persons concerned insofar as known to the air carrier;

5. code of transport;

6. number of persons carried on the flight concerned;

7. planned date and time of departure and arrival.

The air carriers shall inform the data subjects in accordance with Article 19 of the Data Protection Act of 25 September 2020³¹⁷ (FADP).³¹⁸

Orders imposing or lifting the duty to provide data are made as general rulings and are published in the Federal Gazette. Appeals against such rulings do not have suspensive effect.

Air carriers may retain the data in accordance with paragraph 3 solely for evidentiary purposes. They must erase the data:

1. when it is established that SEM will not open proceedings for a violation of the duty to provide data, or two years after the date of the flight at the latest;

2. on the day after the ruling pursuant to Article 122b takes full legal effect.

The air carrier is obliged at the request of the competent federal or cantonal authorities to provide immediate assistance to any passengers that it is carrying who are denied entry to the Schengen area.³²⁰

The obligation to provide assistance covers:

1. the immediate transport of the person concerned from Switzerland to their country of origin, to the state issuing the travel documents or to another state where their admission is guaranteed;

2. the uncovered costs of the required attendance as well as the customary subsistence and care costs until departure from or entry into Switzerland.

If the air carrier is unable to provide evidence that it has fulfilled its duty of care, it must additionally bear:³²¹

1. the uncovered subsistence and care costs that have been covered by the Confederation or the canton for a period of stay of up to six months, including the costs for detention under the law on foreign nationals;

2. the attendance costs;

3. the deportation costs.

Paragraph 3 does not apply if the person being transported has been granted entry to Switzerland in terms of Article 22 AsylA³²². The Federal Council may provide for further exceptions, in particular for exceptional circumstances such as war or natural disasters.³²³

The Federal Council may stipulate a flat-rate charge based on the expected costs.

It may request security for the payment of costs.

The air carriers shall cooperate with the competent federal and cantonal authorities. The modalities of this cooperation may be stipulated in the operating licence or in an agreement between SEM and the carrier.

The following may also be stipulated in the operating licence or agreement in particular:

1. special measures by air carriers to ensure compliance with the duty of care under Article 92;

2. the introduction of flat-rate payments instead of subsistence and care costs under Article 93.

If special measures under paragraph 2 letter a are stipulated, the operating licence or the agreement may provide that any amount that an air carrier must pay under Article 122a paragraph 1 be reduced by up to a half.

The Federal Council may make other commercial carriers subject to Articles 92–94, 122a and 122c if Swiss national borders become a Schengen external border. In doing so, it shall take account of the requirements of Article 26 of the Convention of 19 June 1990³²⁶ implementing the Schengen Agreement (Schengen Convention).

Airport operators are obliged to provide suitable and reasonably priced accommodation at the airport for foreign nationals whose entry or onward journey is refused at the airport until removal or entry.

SEM shall maintain an internal information system on refusals of entry in accordance with Article 65 (INAD System). It shall be used when imposing penalties for violations of the duty of care under Article 122a, and to compile statistics.

The system shall contain the following data on persons who have been refused entry to the Schengen area:

1. surname, first name, sex, date of birth, nationality;

2. details of the flight;

3. reason why entry was refused;

4. details of proceedings for violations of the duty of care under Article 122a in connection with the person concerned.

The data recorded in the system shall be anonymised after two years.

At the border crossing, the data contained in the biometric passport or on the participation card may be compared with the data in the computerised police search system (RIPOL) and the SIS.³⁸¹

In accordance with Regulation (EU) 2017/2226³⁸⁴, the entry and exit system (EES) contains the personal data of third-country citizens who enter the Schengen area for a stay of a maximum of 90 days in any period of 180 days or whose entry into the Schengen area is refused.³⁸⁵

The following categories of data are transferred via the national interface to the EES:

• a. ³⁸⁶identity data relating to the third-country citizens concerned and the data relating to the travel documents;

• b. facial image;

• bbis. ³⁸⁷data on visas issued, if there is a visa requirement;

• bter. ³⁸⁸data on ETIAS travel authorisations issued, if there is an obligation to do so;

• c. the time of entry into and exit from the Schengen area, the border crossing point and the authority responsible for the border checks;

• d. refusals of entry.

If third-country citizens are visa-exempt, in addition to the data under paragraph 2, the responsible authority shall fingerprint the persons concerned and transfer the fingerprints to the EES.

The EES data in accordance with paragraph 2 letters a and b and paragraph 3 shall be stored automatically in the Common Identity Repository (CIR).³⁸⁹

The following authorities may enter and process data in the EES online in accordance with Regulation (EU) 2017/2226³⁹¹:

1. the Border Guard and the cantonal police authorities responsible for the controlling the Schengen external borders: to fulfil their duties in relation to border control;

2. SEM, the Swiss representations abroad and the missions, the cantonal migration authorities responsible for issuing visas and the communal authorities to which the cantons have delegated such responsibilities: in relation to the revocation, cancellation or extension of a visa or of a permitted stay of a maximum of 90 days in any period of 180 days;

3. the Border Guard, the cantonal and communal police authorities and the cantonal and communal migration authorities: to verify that a stay in Switzerland is lawful and to create and update the EES file.

The following authorities may consult the data in the EES online:

1. the Border Guard and the cantonal police authorities responsible for controlling the Schengen external borders: to conduct the controls at the Schengen external border crossing points and on Swiss sovereign territory;

2. SEM, the Swiss representations abroad and the missions, the cantonal migration authorities responsible for issuing visas and the communal authorities to which the cantons have delegated such responsibilities, the FDFA State Secretariat and Directorate of Political Affairs, and the Border Guard and the cantonal police border posts: in relation to the visa procedure via the Central Visa Information System (C-VIS) (Art. 109a);

3. the Border Guard, the cantonal and communal police authorities that carry out checks on persons, SEM and the cantonal and communal migration authorities: for the purpose of checking the requirements for entry or stay in Switzerland and in order to identify foreign nationals who may have been registered in the EES under another identity or who do not or no longer meet the requirements for entering or staying in Switzerland;

4. ³⁹²SEM: as part of the fulfilment of its tasks as the national unit for the European Travel Information and Authorisation System (ETIAS) (ETIAS National Unit).

The authorities under paragraph 2 may consult the data online that the automated calculator under Article 11 of Regulation (EU) 2017/2226 provides.

The following authorities may request EES data from the central access point under paragraph 6 in order to prevent, detect or investigate terrorist or other serious offences:³⁹³

1. fedpol;

2. the FIS;

3. the Office of the Attorney General of Switzerland;

4. the cantonal police and prosecution authorities and the police authorities of the cities of Zurich, Winterthur, Lausanne, Chiasso and Lugano;

5. ³⁹⁴the employees of the Federal Office for Customs and Border Security (FOCBS) responsible for criminal prosecution.

…³⁹⁵

The central access point under Article 29 paragraph 3 of Regulation (EU) 2017/2226 is the fedpol Operations Centre.³⁹⁶

The data obtained from the EES may not in principle be disclosed to third countries, international organisations, private bodies or natural persons.

SEM may however disclose data to a state that is not bound by any of the Schengen Association Agreements, or an international organisation listed in Annex I of Regulation (EU) 2017/2226³⁹⁸ if this is required to prove the identity of a third-country citizen for the purpose of return and the conditions under Article 41 of Regulation (EU) 2017/2226 are met.

Article 110h applies to EES data stored in the CIR.³⁹⁹

The EU member states in which Regulation (EU) 2017/2226⁴⁰¹ has not yet come into force or is not applicable may send their requests for information to the authorities under Article 103c paragraph 4.

The Federal Council shall regulate:

1. the units of the authorities under Article 103c paragraphs 1 and 2 to which the powers mentioned therein apply;

2. the procedure by which the authorities under Article 103c paragraph 4 receive EES data;

3. the list of data in the EES and the access rights of the authorities under Article 103c paragraphs 1 and 2;

4. the storage and the deletion of the data;

5. the modalities in relation to data security;

6. cooperation with the cantons;

7. responsibility for data processing;

8. the list of offences under Article 103c paragraph 4;

9. the procedure for exchanging information under Article 103e;

10. the authorities that may access the list generated by the information mechanism of persons that have exceeded the maximum permitted stay in the Schengen area.

The authorities responsible for border controls at airports may operate an automated border control procedure.

Persons aged 12 and over may participate in the automated border control procedure, irrespective of their nationality, provided they hold a travel document that has a data chip. This contains a facial image of the holder, the authenticity and integrity of which may be tested.

The Federal Council shall regulate the modalities of automated border controls.

As part of the automated border control procedure, the fingerprints and the facial image of the person concerned may be compared with the data on the travel document containing the data chip.

SEM shall maintain a passenger information system (API System) in order to:

1. improve border controls;

2. combat unlawful entry into the Schengen area and transit through the international transit zones of the airports;

3. combat international organised crime and terrorism, espionage and preparations for illegal trading in weapons and radioactive materials and illegal technology transfers.⁴⁰⁸

The API System contains the data in accordance with Article 92a paragraph 3 and the results of comparisons in accordance with paragraph 4.⁴⁰⁹

In order to check whether air carriers are fulfilling their duty to provide data, and to enforce penalties under Article 122b, SEM may retrieve data in accordance with Article 92a paragraph 3 from the API System.⁴¹⁰

In order to improve border controls and to combat unlawful entry into the Schengen area and transit through the international transit zones of the airports, the authorities responsible for checks on persons at the Schengen external borders may retrieve data in accordance with Article 92a paragraph 3 from the API System.⁴¹¹

If it is suspected that a person is preparing for or committing offences under Article 92a paragraph 1^bis letter a, fedpol may retrieve the data in accordance with Article 92a paragraph 3.⁴¹²

The data in accordance with Article 92a paragraph 3 letters a and b shall be automatically and systematically compared with the data from RIPOL, the SIS, the ZEMIS and the Interpol database for stolen and lost travel documents (ASF-SLTD).⁴¹³

The data in accordance with Article 92a paragraph 3 and the results of the comparisons in accordance with paragraph 4 may only be used following the arrival of the flight concerned in order to conduct criminal or asylum proceedings, or proceedings under the law on foreign nationals. It must be erased:⁴¹⁴

1. when it is established that no proceedings of this type will be conducted, or two years after the date of the flight concerned at the latest;

2. on the day after the ruling in proceedings of this type takes full legal effect.

The data may be retained in anonymised form for statistical purposes beyond the deadlines set out in paragraph 5.

The data in accordance with Article 92a paragraph 3 shall be transmitted automatically in electronic form to the FIS.⁴¹⁶

The FIS may process the data in order to fulfil its duties under Article 104a paragraph 1 letter c.

In order to conduct border controls, to combat illegal migration or to enforce return decisions, air carriers must on request provide the authorities responsible for border controls with passenger lists.

The passenger lists must contain the following data:

1. surname, first name(s), address, date of birth, nationality and passport number of the persons being carried;

2. airport of departure, transfer airports and airport of destination;

3. details of the travel agent through which the flight was booked.

The duty to provide the passenger lists ends six months after the flight takes place.

The authority responsible for border controls shall delete the data within 72 hours of receipt.

In accordance with Regulation (EU) 2018/1240⁴²², ETIAS contains the following data on third-country nationals who are exempt from the visa requirement and wish to enter the Schengen area:⁴²³

1. identity data and data on travel documents;

2. approved or rejected applications for an ETIAS travel authorisation.

ETIAS also contains a watchlist with data on third-country nationals:

1. who are suspected of having committed or having taken part in a terrorist offence or other serious criminal offence;

2. for whom there are factual indications or reasonable grounds to believe that they will commit or participate in a terrorist offence or other serious criminal offence.

The data referred to in paragraph 1 letter a shall be stored automatically in the Common Identity Repository (CIR).⁴²⁴

The submission of the application for an ETIAS travel authorisation, the automated examination by ETIAS, the manual examination by the ETIAS Central Unit and the transmission of the case to the competent ETIAS national unit shall be carried out in accordance with Regulation (EU) 2018/1240⁴²⁶.

SEM is the ETIAS National Unit for Switzerland in terms of Article 8 of Regulation (EU) 2018/1240⁴²⁸. SEM shall examine applications for ETIAS travel authorisations for which Switzerland is responsible and consult the other ETIAS national units and Europol as necessary.

When examining applications for ETIAS travel authorisations, SEM may consult other federal or cantonal authorities or instruct them to carry out further enquiries. The Federal Council determines which authorities may be instructed to conduct which enquiries

If there are no factual indications or reasonable grounds for assuming that the applicant's presence in the Schengen area is associated with an illegal immigration, security or public health risk, SEM shall issue the ETIAS travel authorisation

In exceptional cases, SEM may issue an ETIAS travel authorisation with limited territorial validity for Switzerland on humanitarian grounds, for reasons of national interest or because of international obligations.

ETIAS travel authorisations are valid for three years or until the expiry date of the travel document. They do not confer a right of entry into Switzerland.

SEM is responsible for annulling or revoking ETIAS travel authorisations that have already been issued. If an ETIAS travel authorisation is refused, annulled or revoked, SEM shall issue a ruling using a standard form.

The procedure for issuing, refusing, annulling or revoking the ETIAS travel authorisation is governed by the Administrative Procedure Act of 20 December 1968⁴³⁰ (APA). Articles 11b paragraph 1, 22a and 24 APA do not apply. In order to implement Regulation (EU) 2018/1240⁴³¹ and the legal instruments adopted by the European Commission on the basis of this EU Regulation, the Federal Council may issue provisions that derogate from the APA on:

1. electronic submissions and communications (Art. 11b para. 2, 21a and 34 para. 1^bis APA);

2. preliminary hearings (Art. 30 APA);

3. permitting submissions in English; the language of proceedings is an official language (Art. 33a APA).⁴³²

The ETIAS appeal procedure is governed by the APA⁴³⁴ and the Administrative Court Act of 17 June 2005⁴³⁵, unless otherwise stipulated in this Act.

The time limits under Article 22a paragraph 1 APA do not apply to the ETIAS appeal procedure.

The appeal and other submissions to the Federal Administrative Court may be filed in one of the four official languages or in English. In the case of submissions in English, the Federal Administrative Court determines one of the four official languages as the language of proceedings.

The judgment and procedural orders shall be issued in the language of proceedings. If the appeal was filed in English, the conclusions of the judgment shall also be translated into English for information purposes.

Obviously unfounded appeals shall be dismissed by a single judge if:

1. a travel document has been used that is reported in the SIS as lost, stolen, misappropriated or declared invalid;

2. the person concerned is the subject of an alert in the SIS for the purposes of refusing entry or stay; or

3. the ETIAS unit of another state has issued a negative opinion.

Submissions under the ETIAS appeals procedure may be filed electronically via the ETIAS transmission platform in accordance with Article 108d^quater or via one of the transmission channels in accordance with the APA⁴³⁷.

Communications from the Federal Administrative Court to a party or their representative shall be sent by the last method by which a submission was received in the same proceedings. The party may request the use of a different method.

The Federal Administrative Court and SEM shall always send procedural documents to each other via the ETIAS transmission platform.

The Federal Administrative Court shall provide an ETIAS transmission platform.

Submissions filed via the ETIAS transmission platform are not required to bear an electronic signature.

Parties who submit requests via the ETIAS transmission platform and who live abroad are not required to provide an address for service in Switzerland.

When an appeal is filed via the ETIAS submission platform, the appellant shall be automatically requested to pay an advance on costs. If the payment deadline is not met, the appeal will be dismissed. An application for legal aid in accordance with Article 65 APA⁴⁴⁰ remains reserved.

Rulings and judgments issued via the ETIAS transmission platform must bear an electronic signature in accordance with the Federal Act of 18 March 2016⁴⁴¹ on Electronic Signatures.

Communications to the parties to the proceedings that are transmitted via the ETIAS transmission platform are deemed to have been made at the moment they are retrieved from the platform, but no later than the seventh day after they were made available on the platform.

The Federal Council shall regulate the following aspects of the procedure for using the ETIAS transmission platform:

1. the signature to be used for rulings and judgments;

2. the format of the decision and its attachments;

3. the details of the transmission channel;

4. the authorised methods for paying the advance on costs;

5. the requirements and procedures for archiving.

SEM may record and process data in ETIAS in order to fulfil its tasks as an ETIAS National Unit. At the request of fedpol and the FIS, it shall record and process data from the ETIAS watchlist.

The following authorities or third parties may consult ETIAS data online:

1. SEM, the employees of the Federal Office for Customs and Border Security (FOCBS) responsible for checks on persons within Switzerland, the cantonal and communal police authorities and the cantonal and communal migration authorities: to check the requirements for entry and residence in Switzerland;

2. the FOCBS employees responsible for checks on persons at the border and the cantonal police authorities responsible for checks at the Schengen external borders: to fulfil their border control tasks at the Schengen external borders;

3. air carriers: to verify whether the third-country national is in possession of a valid ETIAS travel authorisation.

The following authorities may request EES data from the central access point under paragraph 5 in order to prevent, detect or investigate terrorist or other serious offences:

1. fedpol;

2. the FIS;

3. the Office of the Attorney General of Switzerland;

4. the cantonal police and prosecution authorities and the police authorities of the cities of Zurich, Winterthur, Lausanne, Chiasso and Lugano;

5. ⁴⁴³the FOCBS employees responsible for prosecutions.

...⁴⁴⁴

The central access point in terms of Article 50 of Regulation (EU) 2018/1240⁴⁴⁵ is the fedpol Operations Centre.

The personal data stored in ETIAS shall not be transferred to third countries, international organisations, private bodies or natural persons.