Removal and Expulsion: Rights and Remedies

Administrative Removal (art. 64-64f FNIA)

Ordered when: no valid residence permit, entry conditions no longer met, or permit revoked/not renewed. Ordered by cantonal authority. Entry ban possible (art. 67 FNIA): up to five years, or longer for serious threats.

Administrative detention (art. 76 FNIA): to ensure removal execution. Must be confirmed by a judge within 96 hours (art. 80 para. 2 FNIA). Maximum six months, extendable to eighteen (art. 79 FNIA). Must be proportionate.

Criminal Expulsion (art. 66a-66d CP)

Mandatory Expulsion (art. 66a CP)

Since 2016, the criminal court must expel foreign nationals convicted of certain serious offences (murder, rape, robbery, aggravated drug trafficking, certain FNIA offences). Duration: five to fifteen years (twenty for repeat offenders, art. 66b CP).

Hardship Clause (art. 66a para. 2 CP)

Court may exceptionally waive expulsion if it would cause serious personal hardship and public interest in expulsion does not outweigh the private interest in staying. Applied with restraint.

Non-Refoulement (art. 25 para. 2 FC, art. 3 ECHR)

Absolute limit: expulsion cannot be executed to a state where the person risks torture or inhuman treatment.

Non-Mandatory Expulsion (art. 66abis CP)

Court may expel for offences not on the catalogue if committed against a family member.

Rights

Right to be heard (art. 29 para. 2 FC) before any removal/expulsion decision. Non-refoulement (art. 25 para. 2 FC, art. 3 ECHR, art. 83 FNIA): no execution if impossible, unlawful or unreasonably exigible.

Remedies

Against administrative removal: cantonal administrative court, then FAC, then FSC. Against criminal expulsion: criminal appeal under CrimPC, then FSC. Both subject to strict deadlines.