Facts

Parties:

  • Appellant: [A.A.] , Brazilian national with three minor children.
  • Respondents: Department of the Interior of the Canton of Solothurn, Migration Office, Detention Court of the Canton of Solothurn.

Facts:

  • The appellant was expelled from Switzerland on June 18, 2018, but remained in the country illegally.
  • On July 26, 2020, she was arrested and transferred to the Solothurn detention center.
  • On September 4, 2020, she filed an asylum application, upon which the Migration Office ordered preparatory detention.
  • The appellant filed an appeal against the detention order, which was dismissed by the Administrative Court of the Canton of Solothurn.

Main issue:

  • Lawfulness of preparatory detention and administrative detention, as well as the proportionality of the detention order.

Considerations

The Federal Supreme Court first examines the admissibility of the appeal and finds that it is admissible, as it concerns a coercive measure under foreign nationals law that constitutes a serious interference with personal freedom. The appeal is also admitted if the question raised is of fundamental importance and lies in the public interest.

The Federal Supreme Court then examines the conditions for the order of preparatory detention pursuant to Art. 75 para. 1 lit. f FNIA. It finds that the appellant is illegally staying in Switzerland and that the asylum application was filed in close temporal connection with the order of deportation detention. However, there are indications that the asylum application was not only submitted to avoid deportation, but also to seek effective protection.

The Federal Supreme Court examines the proportionality of the detention order and finds that the preparatory detention is disproportionate, as milder measures such as a reporting obligation or a restriction to a certain area could…