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

a.

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

b.

an application from an employer has been submitted; and

c.

the requirements of Articles 20-25 are fulfilled.

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

a.

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

b.

the necessary financial and operational requirements are fulfilled;

c.²³

they have an adequate and independent source of income; and

d.²⁴

the requirements of Articles 20 and 23-25 are met.

¹ 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.

² It may define quotas for the Confederation and the cantons.

³ The 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.

¹ 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.

² Domestic employees include:

a.

Swiss nationals;

b.

persons with a permanent residence permit;

c.

persons with a residence permit authorising them to work;

d.²⁵

temporarily admitted persons;

e.²⁶

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

³ 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 temporarily admitted for a period of six months following completion of their education or training in Switzerland in order to find suitable work.²⁷

¹ 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.

² 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.

³ 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.

⁴ 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.

⁵ 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.

⁶ 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.

⁷ 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.

⁸ 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.

¹ Foreign nationals may only be admitted in order to work if:

a.

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

b.

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

² 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.

³ In the case of long-term postings, the Federal Council may issue provisions on the duration of the obligation to compensate under paragraph 2.

¹ Short stay and residence permits for work purposes may only be granted to managers, specialists and other qualified workers.

² 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.

³ By way of derogation from paragraphs 1 and 2, the following applicants may be admitted:

a.

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

b.

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

c.

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

d.

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

e.

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.

¹ Foreign nationals may only be admitted as cross-border commuters in order to work if:

a.

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

b.

they work within the Swiss border zone.

² Articles 20, 23 and 24 are not applicable.

¹ Foreign nationals may only be admitted to provide a temporary cross-border service if their activity is in the general interests of the economy.

² The requirements of Articles 20, 22 and 23 apply mutatis mutandis.

¹ 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:

a.

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

b.

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

² In deciding whether to grant short stay permits, the competent authorities may derogate from the requirement under paragraph 1 letter b.

¹ Foreign nationals may be admitted for education or training purposes if:³¹

a.

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

b.

suitable accommodation is available;

c.

the required financial means are available; and

d.³²

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

² In the case of minors, their supervision must be guaranteed.

³ 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.³³

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

a.

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

b.

they have special personal relations to Switzerland; and

c.

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.

¹ Derogations from the admission requirements (Art. 18-29) are permitted in order to:

a.

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

b.

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

c.

regulate the period of stay of foster children;

d.

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

e.³⁵

regulate 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;

f.

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

g.³⁶

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

h.

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

i.³⁷

...

j.

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

k.

facilitate the re-admission of foreign nationals who held a residence or permanent residence permit;

l.

regulate the employment and the participation in employment programmes of asylum seekers (Art. 43 of the Asylum Act of 26 June 1998³⁸, AsylA), temporarily admitted persons (Art. 85) and persons in need of protection (Art. 75 AsylA).

² The Federal Council shall establish the general conditions and regulate the procedure.

¹ Any person recognised as stateless by Switzerland has the right to a residence permit in the canton in which they are lawfully residing.

² If the stateless person satisfies the criteria in Article 83 paragraph 7, the provisions on temporarily admitted persons of Article 83 paragraph 8 apply.

³ Stateless persons in accordance with paragraphs 1 and 2 and stateless persons who are subject to a legally enforceable expulsion order under Articles 66a or 66a^bis SCC³⁹ or Article 49a or 49a^bis MCC⁴⁰ may work anywhere in Switzerland. Article 61 AsylA⁴¹ applies by analogy.⁴²

¹ In fulfilling their tasks, the Confederation, cantons and communes shall take account of integration concerns and of protection against discrimination.

² 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.

³ 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.

⁴ The authorities of the Confederation, cantons and communes, social partners, non-governmental organisations and expatriate' organisations shall cooperate to encourage integration.

⁵ The cantonal social assistance authorities shall register recognised refugees and temporarily admitted persons who are unemployed with the public employment agencies.

¹ The Federal Council shall determine which groups of persons require integration support. It shall consult the cantons and the communal associations in advance.

² 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:

a.

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

b.

in the world of work;

c.

in social security institutions;

d.

in healthcare;

e.

in spatial planning, urban and neighbourhood development;

f.

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.

¹ 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.

² The 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 the SEM in activities that may have an impact on integration.

³ The SEM shall ensure there is an exchange of information and experiences with the cantons, communes and other parties involved.

⁴ 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 the SEM's contact points for integration issues and shall ensure there is an exchange of information and experiences with the communes.

⁵ In cooperation with the cantons, the SEM shall periodically review the integration of the foreign population and guarantee quality assurance in the measures to encourage integration.

¹ 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.

² The competent authorities shall provide foreign nationals with information on programmes for encouraging integration.

³ 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.

⁴ The Confederation, cantons and communes shall inform the population about integration policy and the special situation of foreign nationals.

⁵ The Confederation, cantons and communes may delegate the tasks set out in paragraphs 1-4 to third parties.

¹ 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. It shall in particular subsidise projects that support the acquisition of a national language. Contributions are normally only granted if the cantons, communes or third parties share the costs appropriately.

² 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 AsylA⁷⁹ 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.

³ 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.

⁴ The Federal Council shall fix the level of the federal contributions under paragraphs 2 and 3.

⁵ 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.

¹ When assessing integration, the competent authority shall take the following criteria into account:

a.

respect for public safety, security and order;

b.

respect for the values of the Federal Constitution;

c.

language skills; and

d.

participation in working life or efforts to acquire an education.

² 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.

³ The Federal Council shall determine which language skills are required when granting or renewing a permit.

¹ The integration agreement sets out the objectives, measures and time frame for individually agreed integration support. It also regulates financing.

² 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.

³ 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.

⁴ The competent authorities may issue recommendations to persons to whom Article 2 paragraphs 2 and 3 and Article 42 apply.

¹ The Confederation may facilitate the independent and proper exit of foreign nationals by providing return and reintegration assistance.

² The following persons may claim return and reintegration assistance:

a.

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;

b.

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

c.⁹⁷

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

³ Return and reintegration assistance includes:

a.

return counselling in accordance with Article 93 paragraph 1 letter a AsylA⁹⁸;

a^bis.

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.⁹⁹

⁴ The Federal Council shall regulate the requirements and the procedure regarding the payment and accounting of the contributions.

¹ A permit expires:

a.

on notice of departure abroad;

b.

on the grant of a permit in another canton;

c.

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

d.

on expulsion in terms of Article 68;

e.¹⁰¹

on the holder becoming subject to a legally enforceable order for expulsion from Switzerland under Article 66a SCC¹⁰² or Article 49a MCC¹⁰³;

f.¹⁰⁴

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

² If a foreign national leaves Switzerland without giving notice of departure, a short stay permit expires after three months, and a residence or permanent residence permit after six months. On request, a permanent residence permit may remain valid for a further four years.

¹ 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.

² 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.

³ 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.

⁴ 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.

⁵ 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 1999¹⁰⁶ 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 1960¹⁰⁷ establishing the European Free Trade Association (EFTA Convention).

¹ The competent authority may revoke permits, with the exception of the permanent residence permit, and other rulings under this Act if the foreign national:

a.

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

b.

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 SCC¹⁰⁹;

c.

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;

d.

fails to fulfil an obligation linked to the decision;

e.

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

f.¹¹⁰

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 2014¹¹¹;

g.¹¹²

does not comply with an integration agreement without due cause.

² 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.

¹ The permanent residence permit may be revoked only if:

a.¹¹³

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

b.

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;

c.

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

d.¹¹⁴

the 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 2014¹¹⁵;

e.¹¹⁶

...

² The permanent residence permit may be revoked and replaced by a residence permit if the residence criteria referred to in Article 58a have not been met.¹¹⁷

³ 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.¹¹⁸

¹ The competent authorities shall issue an ordinary removal order if:

a.

a foreign national does not possess a required permit;

b.

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

c.

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

² 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 Agreements¹²⁰ (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, an order 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, an order must be issued without a prior request to leave.

³ An appeal against orders under paragraph 1 letters a and b must be filed within five working days of notification of the order. The appeal does not have suspensive effect. The appellate authority shall decide within ten days on whether suspensive effect will apply.

⁴ The competent cantonal authorities shall immediately appoint a representative for any unaccompanied minor foreign national to safeguard the minor's interests during the removal proceedings.

⁵ The Federal Council shall determine the role, responsibilities and duties of the representative mentioned in paragraph 4.¹²¹

¹ If a different state that is bound by one of the Dublin Association Agreements (para. 4) is responsible for conducting an asylum procedure on the basis of Regulation (EC) No. 604/2013¹²³ (Dublin State), the SEM shall issue a removal order against a person who is residing illegally in Switzerland.¹²⁴

² An appeal must be filed within five working days of notification of the order. 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 order is not suspended within this period, it may be enforced.

³ The canton of residence of the foreign national concerned is responsible for the enforcement of the removal order and, if necessary, for the payment and funding of social and emergency assistance.

^3bis In the case of unaccompanied minors, Article 64 paragraph 4 applies.¹²⁵

⁴ The Dublin Association Agreements are listed in Annex 1 no. 2.

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

¹ Foreign nationals shall be removed without being subjected to any formal procedure if:

a.

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;

b.¹²⁸

they have been refused entry previously in accordance with Article 14 of the Schengen Borders Code¹²⁹.

² If requested immediately by the person concerned, an order shall be issued on a standard form (Art. 64b).

¹ On issuing the removal order, 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.

² The removal order must be enforced immediately or a departure deadline of less than seven days may be set where:

a.

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

b.

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

c.

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

d.

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

e.¹³¹

the person concerned was previously refused entry in accordance with Article 14 of the Schengen Borders Code¹³² (Art. 64c para. 1 let. b);

f.

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

³ The following specific indications in particular lead to the belief that a person intends to evade deportation:

a.

The person fails to cooperate in accordance with Article 90.

b.

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

c.

The person enters Swiss territory despite a ban on entry.¹³³

On giving notice of a removal order, the competent authority may require the foreign national concerned:

a.

to report to an authority regularly;

b.

to provide appropriate financial security;

c.

to hand in travel documents.

¹ The competent authority shall ensure that, if requested, the removal order is translated in writing or verbally into a language understood by the person concerned or which he or she may be assumed to understand.

² If notice is given of the removal order 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 removal order.

¹ If entry is refused at the border control at the airport, the foreign national must leave Switzerland immediately.

² 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 Code¹³⁷. 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.¹³⁸

^2bis 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.¹³⁹

³ Persons subject to a removal order 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 AsylA¹⁴⁰) are reserved.¹⁴¹

¹ The SEM shall, subject to paragraph 5, order a ban on entry against foreign nationals who have been issued with a removal order if:

a.

the removal order is enforced immediately in accordance with Article 64d paragraph 2 letters a-c;

b.

the person does not leave by the deadline set.

² It¹⁴⁴ may order a ban on entry against foreign nationals who:

a.

have violated or represent a threat to public security and order in Switzerland or abroad;

b.

have incurred social assistance costs;

c.

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

³ 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.

⁴ 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.

⁵ 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.¹⁴⁵

¹ 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.¹⁴⁶

² In cases of expulsion, an appropriate departure deadline must be set.

³ 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.

⁴ 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.

¹ The competent cantonal authority shall deport foreign nationals if:

a.

they fail to comply with the departure deadline;

b.

if their removal or expulsion may be enforced immediately;

c.¹⁴⁸

they are being held in detention in accordance with Articles 76 and 77 and a legally binding expulsion or removal order or a legally binding decision on expulsion under Article 66a or 66a^bis SCC¹⁴⁹ or Article 49a or 49a^bis MCC¹⁵⁰ has been issued.

² 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.

³ 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.¹⁵¹

⁴ 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.¹⁵²

¹ During expulsion or removal 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.

² 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 removal or expulsion order may be hiding there, or that travel and identity documents required for the procedure and enforcement are hidden there.¹⁵³

The Federal Department of Justice and Police (FDJP) shall support the cantons responsible for implementing the removal or the expulsion of foreign nationals or the enforcement of an order for expulsion from Switzerland under Article 66a or 66a^bis SCC¹⁵⁴ or Article 49a or 49a^bis MCC¹⁵⁵, in particular by:¹⁵⁶

a.

assisting in obtaining travel documents;

b.

making travel arrangements;

c.¹⁵⁷

ensuring cooperation between the cantons concerned and the FDFA.

¹ The SEM and the cantons shall work together in the case of international return interventions on the basis of Regulation (EU) 2016/1624¹⁵⁹.

² The FDJP may enter into agreements with the competent European Union agency for the surveillance of the Schengen external borders with regard to the deployment of personnel from the SEM and the cantons in connection with international return interventions and the deployment of third parties to monitor returns.

³ The FDJP shall enter into an agreement with the cantons on the modalities of the deployment of personnel.

¹ The Federal Council shall regulate the procedure and the responsibilities for supervising deportation procedures and international return interventions.

² It may delegate tasks relating to the supervision of deportation procedures and international return interventions to third parties.

¹ 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 removal or expulsion order to the following authorities insofar as these authorities require the data to fulfil their statutory duties:

a.

the cantonal authorities responsible for removal or expulsion;

b.

employees of the SEM who are responsible for the centralised organisation and coordination of the compulsory execution of removal and expulsion orders;

c.

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

² The Federal Council regulates the retention and deletion of the data.

¹ The competent authority of the Confederation or the canton may detain persons without a short stay, residence or permanent residence permit:

a.

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

b.

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

² The person may be detained only for the duration of the required cooperation or questioning and the required transport if necessary, and for a maximum of three days.

³ If a person is detained, they must:

a.

be informed of the reason for their detention;

b.

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

⁴ 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.

⁵ On request, the competent judicial authority must review the legality of the detention.

⁶ The duration of detention shall not be deducted from the duration of any detention pending deportation, in preparation for departure, or coercive detention.

¹ 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:

a.

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

b.¹⁶³

they are subject to a legally binding expulsion or removal order 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.

c.¹⁶⁴

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

^1bis The competent cantonal authority shall require a person who is accommodated in a special centre under Article 24a AsylA¹⁶⁵ not to leave the area they were allocated to or not to enter a specific area.¹⁶⁶

² 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.¹⁶⁷

³ Appeals may be lodged with a cantonal judicial authority against the ordering of these measures. The appeal has no suspensive effect.

¹ To facilitate the conduct of removal proceedings or criminal proceedings in which the potential penalty includes an order for expulsion from Switzerland under Article 66a or 66a^bis SCC¹⁶⁸ or Article 49a or 49a^bis MCC¹⁶⁹, the competent cantonal authority may detain a person who does not hold a short stay, residence or permanent residence permit, during the preparation of the decision on residence status for a maximum of six months if they:¹⁷⁰

a.¹⁷¹

refuse during asylum proceedings, removal proceedings or 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, submit several applications for asylum using various identities or repeatedly fail to comply with a summons without sufficient reason or ignore other instructions issued by the authorities in the asylum procedure;

b.

leave an area allocated to them in accordance with Article 74 or enter an area from which they are excluded;

c.

enter Swiss territory despite a ban on entry and cannot be immediately removed;

d.

were removed and submitted an application for asylum following a legally binding revocation (Art. 62 and 63) or a non-renewal of the permit due to violation of or representing a threat to the public security and order or due to representing a threat to internal or external security;

e.

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

f.

stay unlawfully in Switzerland and submit an application for asylum with the obvious intention of avoiding the imminent enforcement of a removal 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 implementation of a penalty or the issue of a removal order;

g.

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

h.

have been convicted of a felony.

^1bis ...¹⁷²

² The competent authority shall decide on the residence status of the person held in detention without delay.

¹ If the court of first instance has issued an expulsion or removal order or an order for expulsion from Switzerland under Article 66a or 66a^bis SCC¹⁷³ or Article 49a or 49a^bis MCC¹⁷⁴, the competent authority may ensure the enforcement of the decision by:¹⁷⁵

a.

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

b.

detaining the person concerned if:

1.¹⁷⁶

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

2.¹⁷⁷

...

3.¹⁷⁸

specific 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 as well as Article 8 paragraph 1 letter a or paragraph 4 AsylA¹⁷⁹,

4.

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

5.¹⁸⁰

the decision to remove the person concerned is issued in a federal centre and enforcement of the removal is imminent.

6.¹⁸¹

...

^1bis The detention order in Dublin cases is governed by Article 76a.¹⁸²

² Detention in terms of paragraph 1 letter b number 5 may last a maximum of 30 days.¹⁸³

³ The days in detention count towards the maximum duration in terms of Article 79.¹⁸⁴

⁴ 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.¹⁸⁵

¹ The competent authority may order the detention of the foreign national concerned to ensure removal to the Dublin State responsible for the asylum proceedings, if in the case concerned:

a.

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

b.

detention is proportional; and

c.

less coercive alternative measures cannot be applied effectively (Art. 28 para. 2 der Regulation [EU] No 604/2013¹⁸⁷).

² The following specific indications suggest that the person concerned intends to evade removal:

a.

The person concerned disregards official orders in the asylum or removal proceedings, in particular by refusing to disclose their identity, thus failing to comply with their duty to cooperate under Article 8 paragraph 1 letter a AsylA¹⁸⁸ or by repeatedly failing to comply with a summons without sufficient excuse.

b.

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

c.

They submit two or more asylum applications under different identities.

d.

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

e.

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

f.

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

g.

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

h.

They have been convicted of a felony.

i.

They deny to the competent authority that they hold or have held a residence document and/or a visa in a Dublin State or have submitted an asylum application there.

³ The person concerned may remain or be placed in detention from the date of the detention order for a maximum duration of:

a.

seven weeks while preparing the decision on responsibility for the asylum application; this includes submitting the request to take charge to the other Dublin State, waiting for the response or tacit acceptance, and drafting and giving notice of the decision;

b.

five weeks during proceedings under Article 5 of Regulation (EC) No 1560/2003¹⁸⁹;

c.

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

⁴ If a person refuses to board the means of transport being used to effect the transfer to the competent Dublin State, or if they prevent the transfer in any other way through their personal conduct, they may, in order to guarantee the transfer, be placed in detention if a detention order under paragraph 3 letter c is no longer possible and a less restrictive measure will not achieve a satisfactory result. The person may be detained until transfer is again possible, but no longer than six weeks. The period of detention may be extended with the consent of a judicial authority if the person concerned remains unprepared to modify their conduct. The maximum duration of this period of detention is three months.

⁵ The days in detention count towards the maximum duration in terms of Article 79.

¹ The competent cantonal authority may detain a person to ensure the enforcement of their removal or expulsion if:

a.

an enforceable decision has been made;

b.

they have not left Switzerland by the appointed deadline; and

c.

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

² Detention may last a maximum of 60 days.

³ The required arrangements for the enforcement of the removal or expulsion must be made without delay.

¹ If a person does not fulfil their obligation to leave Switzerland by the appointed deadline and if the legally enforceable removal or expulsion order or legally enforceable order for expulsion from Switzerland under Article 66a or 66a^bis SCC¹⁹⁰ or Article 49a or 49a^bis MCC¹⁹¹ cannot be enforced due to their personal conduct, they may be detained to ensure the obligation to leave Switzerland is complied with, provided it is not permitted to order detention pending deportation and a more lenient measure would lead to the goal.¹⁹²

² 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.¹⁹³

³ Detention and its extension are ordered by the authorities of the canton which is responsible for enforcing the removal 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.¹⁹⁴

⁴ 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.

⁵ The conditions of detention are governed by Article 81.

⁶ The detention order is revoked if:

a.

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;

b.

they leave Switzerland as ordered;

c.

detention pending deportation is ordered;

d.

a request for release from detention is granted.

¹ 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.

² 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:

a.

the person concerned fails to cooperate with the competent authority;

b.

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

¹ Detention shall be ordered by the authorities of the canton responsible for enforcing the removal 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. In cases covered by Article 76 paragraph 1 letter b number 5, detention shall be ordered by the canton where the centre is located.¹⁹⁶

^1bis In cases under Article 76 paragraph 1 letter b number 5, detention is ordered by the canton in which the the federal centres are located; if in accordance with Article 46 paragraph 1^bis third sentence AsylA¹⁹⁷ a canton other than the canton where the centres are located is responsible for executing removal, that canton is also responsible for ordering detention.¹⁹⁸

² 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.¹⁹⁹

^2bis 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.²⁰⁰

³ 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.

⁴ 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 15.²⁰¹

⁵ 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.

⁶ The detention order shall be revoked if:

a.

the reason for detention ceases to apply or the removal or expulsion order proves to be unenforceable for legal or practical reasons;

b.

a request for release from detention is granted;

c.

the detainee becomes subject to a custodial sentence or measure.

¹ The following authorities are responsible for issuing detention orders under Article 76a:

a.²⁰³

in the case of persons accommodated in a federal centre: the canton responsible for enforcing removal under Article 46 paragraph 1^bis third sentence AsylA²⁰⁴, and in other cases the canton in which the federal centre is located;

b.

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.

² ...²⁰⁵

³ 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.²⁰⁶

⁴ 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.

⁵ The detention of children and young persons under 15 years of age is not permitted.

⁶ 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.

⁷ The detention order shall be revoked if:

a.

the reason for detention ceases to apply or the removal or expulsion order proves to be unenforceable for legal or practical reasons;

b.

a request for release from detention is granted;

c.

the detainee becomes subject to a custodial sentence or measure.

⁸ 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.

¹ 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.

² 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.²⁰⁸

³ The needs of vulnerable persons, unaccompanied minors and families with minor children must be taken into account in the detention arrangements.²⁰⁹

4 The detention arrangements are otherwise governed by:

a.

Article 16 paragraph 3 and 17 of Directive 2008/115/EC²¹⁰ for returns to a third country;

b.

Article 28 paragraph 4 of Regulation (EU) No 604/2013²¹¹ for Dublin transfers;

c.²¹²

in accordance with Article 37 of the Convention of 20 November 1989²¹³ on the Rights of the Child.²¹⁴

¹ 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 1984²¹⁶ on Federal Subsidies for the Execution of Sentences and Measures.

2 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:

a.

asylum seekers;

b.

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

c.

foreign nationals whose detention has been ordered by the SEM in connection with a removal order;

d.

refugees who are expelled in accordance with Article 65 AsylA²¹⁷.

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:

a.

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

b.

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

c.

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

¹ 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.

² 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.

¹ Air carriers transporting persons must take all reasonable measures to ensure that they only transport persons who possess the required travel documents, visas and residence documents to enter the Schengen area or to travel through international transit zones of the airports.

² The Federal Council shall regulate the extent of the duty of care.

¹ 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.²⁶⁰

² The obligation to provide assistance covers:

a.

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;

b.

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

³ If the air carrier is unable to provide evidence that it has fulfilled its duty of care, it must additionally bear:²⁶¹

a.

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;

b.

the attendance costs;

c.

the deportation costs.

⁴ Paragraph 3 does not apply if the person being transported has been granted entry to Switzerland in terms of Article 22 AsylA²⁶². The Federal Council may provide for further exceptions, in particular for exceptional circumstances such as war or natural disasters.²⁶³

⁵ The Federal Council may stipulate a flat-rate charge based on the expected costs.

⁶ It may request security for the payment of costs.

¹ 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 the SEM and the carrier.

² The following may also be stipulated in the operating licence or agreement in particular:

a.

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

b.

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

³ 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 1990²⁶⁶ 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.

The SEM, the cantonal immigration authorities and, where it has jurisdiction, the Federal Administrative Court may process or instruct someone else to process personal data, including particularly sensitive data and personality profiles of foreign nationals as well third parties involved in procedures in accordance with this Act, insofar as they need this data to fulfil their statutory duties.

¹ When verifying entry requirements and in procedures concerning foreign nationals, the competent authorities may in individual cases collect and record biometric data pertaining to foreign nationals for identification purposes. For specific categories of persons, collection and recording may be carried out systematically.²⁹⁶

^1bis If there are indications that an alleged foreign minor has reached the age of majority, the competent authorities may arrange an expert report on that person's age.²⁹⁷

² The Federal Council shall determine the categories of persons for which data may be recorded systematically and which biometric data shall be collected in accordance with paragraph 1, and shall regulate access to this data.²⁹⁸

¹ The competent authority may save and store the biometric data required for the issue of the foreign national identity cards.

² The task of recording biometric data and forwarding identity card data to the issuing body may be delegated wholly or in part to third parties.³⁰⁰

³ The competent authority may process biometric data already recorded in ZEMIS in order to issue or renew a travel document.³⁰¹

⁴ The biometric data required for the issue of an identity card shall be updated every five years. The Federal Council may specify a shorter period for the updating of data if this is required due to changes in the facial features of the person concerned.³⁰²

¹ The following authorities are authorised to read the data stored on the chip in order to verify the identity of the holder or verify that the document is genuine:

a.

the Border Guard;

b.

the cantonal and communal police;

c.

the cantonal and communal migration authorities.

² The Federal Council may authorise airlines, airport operators and other agencies that must verify the identity of persons to read the fingerprints stored on the data chip in order to carry out checks on persons.

¹ The arrival of flight passengers may be monitored using technical identification procedures. The authorities responsible for border controls (Art. 7 and 9) shall use the collected data:³⁰⁵

a.

to determine the air carrier involved and the place of departure of foreign nationals who do not fulfil the entry requirements;

b.

to check all incoming persons against the data stored in the search systems.

² The competent authorities shall notify the FIS if they discover a specific threat to internal or the external security during this monitoring. They may forward the corresponding data with the report.³⁰⁶

³ The collected data must be erased within 30 days. If it is required for pending criminal, asylum proceedings or proceedings under the law on foreign nationals, the Federal Council may provide for specific data to be stored for a longer period.

⁴ The Confederation may pay the cantons where the international airports are located contributions to the costs of supervision in accordance with paragraph 1.

⁵ The Federal Council shall regulate the specifications that a facial recognition system must satisfy, as well as the details of the monitoring procedure and the passing on of information to the FIS.³⁰⁷

¹ The authorities responsible for border controls at airports may operate an automated border control procedure. This has the aim of simplifying checks on participants when they enter and leave the Schengen area.

² Exclusively entitled to participate in the automated border control procedure are persons who:

a.

hold Swiss citizenship; or

b.³⁰⁹

hold rights under the AFMP³¹⁰ or the EFTA Convention³¹¹.

³ Participation requires a biometric passport or a participation card on which biometric data is stored. In order to issue the participation card, the authorities responsible for border controls may record biometric data.

⁴ On crossing the border, the data held in the biometric passport or on the participation card may be compared with the data in the computerised police search system (RIPOL) and the Schengen Information System (SIS).

⁵ The authorities responsible for border controls shall operate an information system for the processing of personal data relating to those persons who require a participation card for the automated border control procedure. The information system shall not contain any biometric data. The persons concerned shall be informed in advance of the purpose of the data processing and the categories of data recipient.

⁶ The Federal Council shall regulate the registration procedure, the requirements for participation in the automated border control procedure, the organisation and operation of the information system and the list of personal data to be processed in the information system.

¹ The 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.

² The system shall contain the following data on persons who have been refused entry to the Schengen area:

a.

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

b.

details of the flight;

c.

reason why entry was refused;

d.

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

³ The data recorded in the system shall be anonymised after two years.

¹ 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 the SEM or to the authority responsible for the border controls. The data must be transmitted immediately after departure.³¹⁴

^1bis SEM may extend the duty to provide data to other flights:

a.

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

b.

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

^1ter The data must be transmitted immediately after departure.³¹⁶

² The order to provide data must contain:

a.

the airports or states of departure;

b.

the data categories in accordance with paragraph 3;

c.

the technical details on data transmission.

³ The duty to provide data applies to the following data categories:

a.

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

b.

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

c.

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

d.

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;

e.

code of transport;

f.

number of persons carried on the flight concerned;

g.

planned date and time of departure and arrival.

⁴ The air carriers shall inform the persons concerned in accordance with Article 18a of the Federal Act of 19 June 1992³¹⁷ on Data Protection.

⁵ 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.

⁶ Air carriers may retain the data in accordance with paragraph 3 solely for evidentiary purposes. They must erase the data:

a.

when it is established that the 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;

b.

on the day after the ruling in application of Article 122b takes full legal effect.

¹ The SEM shall maintain a passenger information system (API System) in order to:

a.

improve border controls;

b.

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

c.

combat international organised crime and terrorism, espionage and preparations for illegal trading in weapons and radioactive materials and illegal technology transfers.³¹⁹

^1bis The API System contains the data in accordance with Article 104 paragraph 3 and the results of comparisons in accordance with paragraph 4.³²⁰

² In order to check whether air carriers are fulfilling their duty to provide data, and to enforce penalties under Article 122b, the SEM may retrieve data in accordance with Article 104 paragraph 3 from the API System.³²¹

³ 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 104 paragraph 3 from the API System.³²²

^3bis If it is suspected that a person is preparing for or committing offences under Article 104 paragraph 1^bis letter a, fedpol may retrieve the data in accordance with Article 104 paragraph 3.³²³

⁴ The data in accordance with Article 104 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 documents (ASF-SLTD).³²⁴

⁵ The data in accordance with Article 104 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:

a.

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;

b.

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

⁶ The data may be retained in anonymised form for statistical purposes beyond the deadlines set out in paragraph 5.

¹ The data in accordance with Article 104 paragraph 3 shall be transmitted automatically in electronic form to the FIS.

² The FIS may process the data in order to fulfil its duties under Article 104a paragraph 1 letter c.

¹ In order to conduct border controls, to combat illegal migration or to enforce removal orders, air carriers must on request provide the authorities responsible for border controls with passenger lists.

² The passenger lists must contain the following data:

a.

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

b.

airport of departure, transfer airports and airport of destination;

c.

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

³ The duty to provide the passenger lists ends six months after the flight takes place.

⁴ The authority responsible for border controls shall delete the data within 72 hours of receipt.

¹ In order to fulfil their duties, and in particular to combat criminal offence in terms of this Act, the SEM and the competent authorities of the cantons may disclose personal data of foreign nationals to foreign authorities and international organisations entrusted with corresponding duties provided such authorities and organisation guarantee a level of data protection equivalent to that in Switzerland.

² The following personal data may be disclosed:

a.

biographical data (surname, first name, alias, date of birth, place of birth, sex, nationality, last address in the native country or country of origin) of the foreign national and, if necessary, of the next of kin;

b.

information about the passport or other identity cards;

c.

biometric data;

d.

further data required for the identification of a person;

e.

information on the state of health, as far as this is in the interests of the person concerned and the person has been informed about this;

f.

the data required for ensuring entry to the destination country as well as for the security of the accompanying persons;

g.

information on the places of stay and routes travelled;

h.

information on the regulation of the period of stay and the visas granted.

For the implementation of removals or expulsions to the native country or country of origin, the authority responsible for organising the departure may only disclose the following data to foreign authorities if this does not put the foreign national or the next of kin at risk:

a.

biographical data (surname, first name, alias, date of birth, place of birth, sex, nationality, last address in the native country or country of origin) of the foreign national and, if necessary, of the next of kin;

b.

information about the passport or other identity cards;

c.

biometric data;

d.

further data required for the identification of a person;

e.

information on the state of health, as far as this is in the interests of the person concerned and the person has been informed about this;

f.

the data required for ensuring entry to the destination country as well as for the security of the accompanying persons.

¹ In order to implement the readmission and transit agreements mentioned in Article 100, the SEM and the competent authorities of the cantons may also disclose the required personal data to states that do not provide a level of data protection equivalent to that in Switzerland.

² For the purpose of the readmission of its citizens, the following data may be disclosed to another contracting state:

a.

biographical data (surname, first name, alias, date of birth, place of birth, sex, nationality, last address in the native country or country of origin) of the foreign national and, if necessary, of the next of kin;

b.

information about the passport or other identity cards;

c.

biometric data;

d.

further data required for the identification of a person;

e.

information on the state of health, as far as this is in the interests of the person concerned;

f.

the data required for ensuring entry to the destination country as well as for the security of the accompanying persons;

g.

information on criminal proceedings, insofar as this is required in specific cases to process readmission and to safeguard public security and order in the native country and provided the person is not endangered as a result; Article 2 of the Federal Act of 20 March 1981³²⁸ on International Mutual Assistance in Criminal Matters applies mutatis mutandis.

³ For the purpose of the transit of members of third countries, the following data may be disclosed to the other contracting state:

a.

data in accordance with paragraph 2;

b.

information on the places of stay and routes travelled;

c.

information on the regulation of the period of stay and the visas granted.

⁴ Purpose limitation, any security measures and the competent authorities must be defined in the readmission or transit agreement.

¹ The Central Visa Information System (C-VIS) contains the visa data from all the states to which Regulation (EC) No. 767/2008³³³ applies.

² The following authorities may consult C-VIS data online:

a.³³⁴

the SEM, Swiss representations abroad and missions, the cantonal migration authorities responsible for the visa and the communal authorities to which the cantons have delegated these responsibilities, the State Secretariat and the Directorate of Political Affairs of the FDFA, the Border Guard and the border posts of the cantonal police authorities: in the course of the visa procedure;

b.³³⁵

the SEM: to determine the state responsible for assessing an asylum application under Regulation (EC) No. 604/2013³³⁶ and in the course of assessing an asylum application if Switzerland is responsible for its processing;

c.

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

d.³³⁷

the Border Guard and the cantonal and communal police authorities that conduct checks on persons: to identify persons who do not or who no longer fulfil the requirements for entry into Swiss sovereign territory or for a stay in Switzerland.

³ The following authorities may request specific C-VIS data from the central access point under paragraph 4 in application of Decision 2008/633/JI³³⁸ in order to prevent detect or investigate terrorist offences or other serious criminal offences:

a.

fedpol;

b.

FIS;

c.

the Office of the Attorney General of Switzerland;

d.

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

⁴ The central access point in accordance with Article 3 paragraph 3 of Decision 2008/633/JI is the fedpol operations centre.

¹ The SEM shall operate a national visa system. The system serves the registration of visa applications and the issue of visas granted by Switzerland. In particular, it contains the data transmitted via the national interface (N-VIS) to the C-VIS.

² The national visa system contains the following categories of data on visa applicants:

a.

alphanumerical data on the applicant and on the visa that has been applied for, granted, denied, cancelled, revoked or extended;

b.

the applicants' photographs and fingerprints;

c.

the links between certain visa applications;

d.³⁴⁰

the data from RIPOL and from the ASF-SLTD to which the visa authorities have access;

e.³⁴¹

the data from SIS to which the visa authorities have access, provided an alert has been issued under Chapter 4 of Regulation (EC) No 1987/2006³⁴² and the requirements of Article 32 paragraph 1 of this EC Regulation have been met.

^2bis The national visa system also contains a subsystem with the files on the visa applicants in electronic form.³⁴³

³ The SEM, Swiss representations abroad and missions, cantonal migration authorities responsible for visas and the communal authorities to which the cantons have delegated these responsibilities, the State Secretariat and the Directorate of Political Affairs of the FDFA and the Border Guard and the border posts of the cantonal police authorities that issue exceptional visas may enter, modify and delete data in the national visa system in order to fulfil their duties under the visa procedure.³⁴⁴ They must enter and process the data transmitted to the C‑VIS in accordance with Regulation (EC) No 767/2008³⁴⁵.

The SEM may grant the following authorities online access to the data in the national visa system:

a.

the Border Guard and the border posts of the cantonal police authorities: to carry out checks on persons and to issue exceptional visas;

b.

the Swiss representations abroad and the Swiss Missions: to verify visa applications;

c.

the State Secretariat and the Directorate of Political Affairs of the FDFA: to verify visa applications for which the FDFA is responsible;

d.

the Central Compensation Office: to assess applications for benefits and to allocate and check OASI insurance numbers;

e.³⁴⁷

the cantonal and communal migration authorities and the cantonal and communal police authorities: to fulfil their duties in the field of immigration;

f.

the competent federal authorities in the field of internal security, international mutual legal assistance and policing:

1.

in order to identify persons in connection with the exchange of police intelligence, security and criminal police duties, extradition proceedings, administrative and mutual legal assistance, law enforcement and the enforcement of penalties on behalf of others, combating money laundering, drug trafficking and organised crime, checking identity documents, tracing missing persons and checking entries in the computerised police search system under the Federal Act of 13 June 2008³⁴⁸ on the Federal Police Information Systems,

2.

in order to check measures banning entry in order to safeguard Switzerland's internal and external security under the Federal Act of 21 March 1997³⁴⁹ on Measures to Safeguard Internal Security;

g.

the Federal Appellate Authorities: for the preparatory briefing procedure for appeals;

h.

the civil register offices and their supervisory authorities: to identify persons in connection with changes in civil status, to prepare for a marriage ceremony or the registration of a same-sex partnership, and to prevent circumvention of the law on foreign nationals in accordance with Article 97a paragraph 1 CC³⁵⁰ and Article 6 paragraph 2 of the Same-Sex Partnership Act of 18 June 2004³⁵¹.

Member states of the EU to which Regulation (EC) No. 767/2008³⁵³ not yet applies may send their requests for information to the authorities under Article 109a paragraph 3.

The Federal Council shall regulate:

a.

the administrative units under Article 109a paragraphs 2 and 3 and 109b paragraph 3 to which the powers mentioned therein apply;

b.

the procedure by which authorities obtain C-VIS data under Article 109a paragraph 3;

c.

the extent of online access to the C-VIS and auf das national visa system;

d.

the procedure for exchanging information under Article 109d;

f.

the storage of the data and procedure for its deletion;

g.

the modalities with regard to data security;

h.

cooperation with the cantons;

i.

responsibility for data processing;

j.

the list of offences under Article 109a paragraph 3.

¹ SEM shall operate an information system in order to fulfil its tasks in connection with the enforcement of removal, expulsion under this Act or judicial expulsion under Article 66a or 66a^bis SCC³⁵⁶ or Article 49a or 49a^bis MCC³⁵⁷ as well as voluntary return, including the return assistance and counselling (eRetour System).

² The information system assists with:

a.

the processing of personal data pertaining to foreign nationals in connection with the enforcement of removal, expulsion or judicial expulsion orders, voluntary return or return assistance or counselling, including the processing of sensitive personal data;

b.

the administration and supervision of the various phases of the removal, expulsion or judicial expulsion process and the tasks related to return, including return assistance and counselling and the financial payments associated with return;

c.

the production of statistics.

¹ The information system contains data on foreign nationals:

a.

whose removal, expulsion or judicial expulsion is to be enforced;

b.

who leave Switzerland voluntarily;

c.

who have requested counselling on return or have received return assistance.

² It contains the following categories of data:

a.

the surname and first name(s), date of birth and address (basic data), sex, place of birth, nationality, ethnicity, religion, mother tongue and civil status of the foreign national and the names of his or her parents;

b.

the biometric data;

c.

the part of the electronic file relating to return under Article 4 paragraph 1 letter d of the Federal Act of 20 June 2003³⁵⁸ on the Information System on Matters relating to Foreign Nationals and Asylum;

d.

the form of removal or voluntary return, the travel document used and the financial payments disbursed on departure;

e.

the data on counselling on return and the granting of return assistance;

f.

the data on measures to obtain travel documents;

g.

the data required for the administration and supervision of the various phases of departure from Switzerland;

h.

the medical data required to assess the person's fitness to travel;

i.

the result of searches in RIPOL and the SIS;

j.

the location, duration and form of detention;

k.

the person's behavioural characteristics and the compulsory measures that may be or have been ordered during the flight;

l.

details of the flight tickets and the itinerary;

m.

data on the persons entrusted with accompanying the person concerned for medical, social or policing reasons;

n.

the data required to prepare cost statements and make payments in connection with the return.

³ The personal data under paragraph 2 letters a-c and j are copied automatically from ZEMIS. If these data are modified in the information system, the updated data are automatically copied into ZEMIS.

⁴ SEM shall inform persons whose data is recorded in the system of the reason for processing these data, the data categories and the data recipient.

Provided it is necessary for them to carry out their tasks, the following persons and agencies shall have access to the information system, but limited to the date mentioned in brackets:

a.

SEM employees:

1.

to obtain travel documents for the return, to organise departure and to grant return assistance (data under Art. 109g para. 2),

2.

to prepare the cost statement (basic data under Art. 109g para. 2 let. a and data under Art. 109g para. 2 let. c-h and j-n);

b.

the cantonal authorities entrusted with carrying out the return procedure in order to report cases that require support from SEM under Article 71 (data under Art. 109g para. 2);

c.

the cantonal authorities responsible for return assistance (data under Art. 109g para. 2 let. a-h and k-n);

d.

the cantonal authorities responsible for cost statement (basic data under Art. 109g para. 2 let. a and data under Art. 109g para. 2 let. c-g, j and l-n);

e.

the cantonal police authorities for accompanying persons being removed or expelled (basic data under Art. 109g para. 2 let. a and data under Art 109g para. 2 let. b, d, g and i-n);

f.

the cantonal police authorities at the airports and the Border Guard for tasks related to checks on departure (basic data under Art. 109g para. 2 let. a and data under Art. 109g para. 2 let. b, d, g and i-n);

g.

third parties delegated tasks under Article 109i.

¹ SEM and the cantonal authorities entrusted with carrying out the return procedure may in providing return assistance delegate specific tasks to the return counselling agencies (Art. 93 para. 1 let. a AsylA³⁵⁹) and international organisations (Art. 93 para. 3 AsylA). They may delegate tasks to other third parties in connection with organising the return under Article 71 letter b of this Act.

² SEM may grant third parties that have been delegated tasks access to the data in the Information System that they require to fulfil their mandate:

a.

for tasks in connection with return assistance and counselling;

b.

for tasks related to preparing for departure at the airport;

c.

for assessing the fitness of the person concerned to travel and for deciding on any medical assistance required.

³ SEM shall ensure that the third parties comply with the regulations on data protection and on information technology security.

⁴ The Federal Council shall decide which categories personal data in the information system may be processed by the third parties that have been delegated tasks mentioned in paragraph 1 above.

¹ SEM is responsible for the security of the Information System and the legality of the processing of personal data.

² The Federal Council shall regulate:

a.

the organisation and operation of the system;

b.

the catalogue of data for the systems and the extent of access rights granted to the authorities mentioned in Article 109h;

c.

the technical and organisational aspects of measures to prevent unauthorised processing;

d.

the retention period for and the destruction of the data.

The SEM in cooperation with the Federal Administrative Court and the competent cantonal authorities shall maintain an automated personal file and documentation system.

¹ The SEM shall maintain an information system for the issue of Swiss travel documents and return visas to foreign nationals (the ISR) in accordance with Article 59.³⁶³

² The ISR shall contain the following data:

a.³⁶⁴

the surname, first name, sex, date of birth, place of birth, nationality, address, height, facial image, name and first name of parents, surnames of parents at birth, signature, file number and personal number;

b.

information on the application, such as the date of receipt of application and decision on the application;

c.

information on the travel document, such as the date of issue and term of validity;

d.

the signatures and names of the statutory representative in the case of travel documents issued to minors or incapacitated persons;

e.

combined surnames, religious names or pseudonyms as well as information on special characteristics such as disabilities, prostheses or implants provided the applicant requests that the travel document contain this information;

f.

information on lost travel documents.

³ To check whether an alert has been issued in respect of the applicant due to a felony or a misdemeanour, the RIPOL computerised search system automatically conducts a search.³⁶⁵

⁴ The data collected in accordance with paragraph 2 shall be processed by employees of the SEM who deal with issuing Swiss travel documents and return visas.³⁶⁶

⁵ The SEM may make the data that it has collected in accordance with paragraph 2 accessible to the following authorities or offices through a retrieval process, insofar as they need the data for the fulfilment of their duties:³⁶⁷

a.

the office responsible for issuing travel documents;

b.

the border posts of the cantonal police authorities and the Border Guard, in order to carry out checks on persons;

c.

the police stations designated by the cantons to carry out checks on persons and to record reports of lost travel documents;

d.³⁶⁸

the authorities or agencies appointed by the cantons to accept applications for the issue of travel documents;

e.³⁶⁹

the authorities or agencies appointed by the cantons to take portrait photographs or fingerprints

⁶ The Federal Council shall issue the implementing provisions.

¹ Any person who:

a.

violates the entry regulations contained in Article 5;

b.

stays unlawfully in Switzerland, in particular after the expiry of a period of stay for which a permit was granted or which does not require a permit;

c.

works without authorisation;

d.

fails to enter or leave the country through an authorised border crossing point (Art. 7),

is liable on conviction to a custodial sentence not exceeding one year or to a monetary penalty.

² The same penalty applies if, after leaving Switzerland or the international transit zone of the airports, the foreign national enters or makes preparations to enter the sovereign territory of another state in violation of the entry provisions applicable there.³⁸²

³ If the offence is committed through negligence, the penalty is a fine.

⁴ If removal or expulsion proceedings are pending, criminal proceedings that have been commenced solely in respect of an offence under paragraph 1 letters a, b or d shall be adjourned until the removal or expulsion proceedings have reached a legally binding conclusion. If removal or expulsion proceedings are anticipated, the criminal proceedings may be adjourned.³⁸³

⁵ If a sentence is expected for an offence under paragraph 1 letters a, b or d the imposition or execution of which would preclude the imminent enforcement of a legally binding removal or expulsion order, the competent authority shall refrain from any prosecution, committal to court or the imposition of penalties.³⁸⁴

⁶ Paragraphs 4 and 5 do not apply if the person concerned has re-entered Switzerland in disregard of a ban on entry or if it has not been possible to enforce a removal or expulsion order because of the person's conduct.³⁸⁵

¹ Any person who:

in Switzerland or abroad, facilitates the unlawful entry or departure or the unlawful period of stay in Switzerland of a foreign national or assists a foreign national to prepare for the same;

abis.³⁸⁶

from within Switzerland facilitates the unlawful entry or departure or the unlawful period of stay in a Schengen State of a foreign national or assists a foreign national to prepare for the same;

b.

finds foreign nationals employment in Switzerland without the required permit;

c.³⁸⁷

facilitates the entry of a foreign national who has left Switzerland or the international transit zone of the airports into the sovereign territory of another state in violation of the entry provisions applicable there or assists that foreign national in preparing for such entry.

is liable on conviction to a custodial sentence not exceeding one year or to a monetary penalty.

² In minor cases, a fine may be imposed.

³ The penalty is a custodial sentence not exceeding five years or a monetary penalty and the custodial sentence must be combined with a fine if the offender:

a.

acts intentionally for their own or another's unlawful financial gain; or

b.

acts for an association or group that was formed for the purpose of the continued perpetration of this offence.

¹ Any person who as an employer wilfully employs foreign nationals who are not entitled to work in Switzerland, or any person who obtains a cross-border service in Switzerland for which the service provider has no permit is liable on conviction to a custodial sentence not exceeding one year or to a monetary penalty. In serious cases, the penalty is a custodial sentence not exceeding three years or a monetary penalty. The custodial sentence must be combined with a monetary penalty.

² Any person who has a legally binding conviction under paragraph 1 and again commits offences under paragraph 1 within five years is liable on conviction to a custodial sentence not exceeding three years or a monetary penalty. The custodial sentence must be combined with a monetary penalty.

³ If the offence is committed through negligence, the penalty is a fine not exceeding 20,000 francs.³⁸⁸

¹ Any person who wilfully breaches the obligation to give notice of vacant positions (Art. 21a para. 3) or the obligation to conduct an interview or an aptitude test (Art. 21a para. 4) is liable to a fine not exceeding 40 000 francs.

² If the offence is committed through negligence, the penalty is a fine not exceeding 20 000 francs.

¹ Any person who deceives the authorities responsible for the implementation of this Act by providing false information or withholding essential information and thereby fraudulently secures the grant of a permit for themselves or another or prevents the withdrawal of a permit is liable on conviction to a custodial sentence not exceeding three years or to a monetary penalty.

² Any person who, with the intention of circumventing the regulations on the admission and stay of foreign nationals, marries a foreign national or arranges, encourages or facilitates such a marriage is liable on conviction to a custodial sentence not exceeding three years or to a monetary penalty.

³ The penalty is a custodial sentence not exceeding five years or a monetary penalty and the custodial sentence must be combined with a monetary penalty if the offender:

a.

acts intentionally for their own or another's unlawful financial gain; or

b.

acts for an association or group that was formed for the purpose of the continued perpetration of this offence.

¹ Any person who fails to comply with a restriction or exclusion order (Art. 74) is liable on conviction to a custodial sentence not exceeding three years or a monetary penalty.

² Prosecution, the committal to court or penalties may be dispensed with if the person concerned:

a.

can be deported immediately;

b.

is in detention in preparation for departure or pending deportation.

¹ Any person who wilfully or through negligence:

a.

violates the requirements to register and give notice of departure (Art. 10-16);

b.

changes jobs without the required permit or changes from salaried to self-employment (Art. 38);

c.

moves their place of residence to another canton without the required permit (Art. 37);

d.

fails to comply with the conditions of the permit (Art. 32, 33 and 35);

e.

fails to comply with the obligation to cooperate in obtaining identity documents (Art. 90 let. c);

f.³⁹⁰

fails to comply with the obligation to report under Article 85a paragraph 2 or fails to comply with the conditions relating to the report (Art. 85a paras 2 and 3);

g.³⁹¹

refuses to allow or otherwise prevents verification by a supervisory body under Article 85a para. 4

is liable on conviction to a fine.

² In the case of offences against the implementing provisions of this Act, the Federal Council may provide for fines not exceeding 5000 francs.

Any person who processes personal data in the C-VIS for purposes other than those specified in Article 109a shall be liable to a fine.

¹ The prosecution and trial of offences under Articles 115-120 and 120d is the responsibility of the cantons. If an offence has been committed in more than one canton, then the canton that initiates the prosecution has jurisdiction.

² ...³⁹⁵

¹ Forged and falsified travel documents and identity papers, and genuine travel documents and identity papers where there is specific evidence that they are being used unlawfully may, as directed by of the SEM, be forfeited to authorities or offices or seized for return to their rightful owners.

² The forfeiture or return under paragraph 1 is also possible if there is specific evidence that genuine travel documents and identity papers are intended for persons who are staying unlawfully in Switzerland.

³ Identity papers under paragraph 1 include identity cards and other documents that indicate the identity of a foreign national.

¹ If an employer repeatedly violates the provisions of this Act, the competent authority may refuse or only partially authorise the employer's requests for the admission of foreign employees who are not entitled to be granted a permit.

² The competent authority may also issue a warning that penalties may be imposed.

³ An employer who has employed or sought to employ foreign employees who are not entitled to work shall assume any uncovered costs incurred by the community for subsistence, any accident or illness, and the return journey of the persons concerned.

¹ Any air carrier that violates its duty of care under Article 92 paragraph 1 shall be required to pay 4000 francs for each person carried who is not in possession of the required travel documents, visa or residence documents. In serious cases, the penalty is 16 000 francs per person. In minor cases, proceedings may be waived.

² A violation of the duty of care is presumed if the air carrier carries persons who are not in possession of the travel documents, visas, or residence documents required for entry to the Schengen area or for transit through the international transit zones of the airports and who are refused entry.

³ There is no violation of the duty of care where:

a.

the air carrier proves that:

1.

the forgery or falsification of a travel document, visa or residence document was not clearly recognisable,

2.

it was not clearly recognisable that a travel document, visa or residence document did not pertain to the person carried,

3.

it was not immediately possible to ascertain the authorised term of stay or points of entry on the basis of the stamps on the travel document,

4.

it took all the organisational measures that can reasonably be required to prevent it from carrying persons that do not possess the travel documents, visas and residence documents required for entry to the Schengen area or for transit through the international transit zones of the airports;

b.

the air carrier provides credible evidence that it was coerced into carrying a person.

⁴ The Federal Council may provide for exemptions from the penalty under paragraph 1, in particular in situations of war or natural disaster.

¹ Any air carrier shall be charged 4000 francs for each flight in respect of which it violates its duty to provide data. In serious cases the penalty is 12 000 francs per flight. In minor cases, proceedings may be waived.

² A violation of the duty to provide data is presumed if the air carrier fails to provide the data in accordance with Article 104 paragraph 3 on time, or if the data provided is incomplete or inaccurate.

³ There is no violation of the duty to provide data where the air carrier proves that:

a.

it was impossible to provide the data in the case concerned for technical reasons for which the carrier was not responsible; or

b.

it took all the organisational measures that can reasonably be required to prevent any violation of the duty to provide data.

¹ Articles 122a and 122b apply irrespective of whether the duty of care or duty to provide data was violated in Switzerland or abroad.

² The SEM is responsible for imposing penalties for infringements under Articles 122a and 122b.

³ Proceedings are governed by the Administrative Procedure Act of 20 December 1968⁴⁰². They must be opened:

a.

in cases of a violation of the duty of care: two years at the latest after the refusal of entry in question;

b.

in cases of a violation of the duty to provide data: two years at the latest after the date on which the data should have been provided in accordance with Article 104 paragraph 1.