Facts

The applicant, a Lebanese national (born 1961), was subject to an indefinite entry ban which the Federal Office for Migration, Integration and Emigration (IMES, now State Secretariat for Migration SEM) had ordered on 1 September 2003. The basis was, among other things, a criminal conviction of the applicant by the Tribunal pénal de la Sarine et Ministère public on 11 June 2003 for fraud, forgery of documents and obtaining a false certification, sentenced to 15 months' imprisonment and expulsion from Switzerland for seven years. According to his own statements, the applicant left Switzerland immediately after receiving the entry ban.

On 14 April 2019 the applicant re-entered Switzerland, coming from France. By order of 30 April 2019 the Migration Office of the Canton of Zurich removed him from Switzerland and ordered immigration detention based on Art. 76 para. 1 FNIA. On the same day the Migration Office applied to the Coercive Measures Court of the District Court of Zurich for confirmation of detention until 28 July 2019. The Coercive Measures Court confirmed the detention by decision of 2 May 2019 and granted it as requested.

The single judge at the Administrative Court of the Canton of Zurich dismissed the applicant's appeal by judgment of 4 July 2019 (VB.2019.00370). The applicant then appealed to the Federal Supreme Court and requested, in substance, his release for the purpose of returning to France. The Migration Office and the Coercive Measures Court waived a response; SEM requested dismissal of the appeal.

The subject matter in dispute was whether the ground for detention under Art. 76 para. 1 lit. b no. 1 FNIA in conjunction with Art. 75 para. 1 lit. c FNIA (entering Switzerland despite an entry ban) still existed, after the indefinite entry ban had exceeded the statutory maximum duration of five years.

Considerations

The appeal in public law matters against the final cantonal decision on confirmation of detention is admissible (Art. 86 para. 1 lit. d and para. 2, Art. 90 FSCA; Art. 83 lit. c no. 4 FSCA does not preclude it). The applicant's submission, which in substance requested his release, was accepted as an admissible appeal. The Federal Supreme Court applies the law of its own motion but generally examines only the complaints raised (Art. 106 para. 1 and 2 FSCA).

Immigration detention may be ordered under Art. 76 para. 1 FNIA if a ground for detention under Art. 76 para. 2 lit. b FNIA exists. The lower court based the detention on Art. 76 para. 1 lit. b no. 1 FNIA in conjunction with Art. 75 para. 1 lit. c FNIA, under which a ground for detention exists where a person enters the territory of Switzerland despite an entry ban and cannot be removed immediately.

Under Art. 67 para. 2 lit. a and para. 3 FNIA, an entry ban may in principle last no more than five years; a longer duration is permissible only where there is a serious threat to public security and order. According to the case law of the ECJ to be taken into account when interpreting Art. 67 para. 3 FNIA (Art. 11 para. 2 of Directive 2008/115/EC; judgments C-225/16 Ouhrami and C-297/12 Filev and Osmani), the effect of entry bans imposed before the directive entered into force is assessed from the time the person actually leaves the territory. Art. 67 para. 3 FNIA therefore prohibits maintaining the effect of indefinite entry bans beyond the maximum duration of five years, unless there is a serious threat to…