The case concerned an Algerian national who applied for international protection in Switzerland and the SEM decided that Belgium is the responsible Member State, according to the Dublin III Regulation. The transfer decision became legally binding on 4 January 2021 and the applicant was initially detained from 26 February 2021 pending deportation to Belgium, until 8 April 2021, thus for a six week period. Because the deportation was not possible, the detention was extended until 12 May 2021. The applicant complained that the extension of the detention was unlawful and the Administrative Court of the Canton of Thurgau rejected his claim.

In the second appeal, the Federal Court ruled that the applicant rightly considered the extension of his detention as unlawful and noted that the Dublin III Regulation provides two reasons for detention: a person can be detained before or during the clarification of the Dublin state responsible to process the application, and when detention is used to secure the transfer.  

Switzerland has integrated the Dublin II provisions into the Foreigners and Integration Act and Article 76a par. 4 of that Act provides that a maximum of 3 months detention period can be ordered to secure the transfer. The CJEU has specified in its case law that the length of detention allowed under the Dublin III Regulation is of a maximum of six weeks.  Detention may only last until a new transfer is possible, but no longer than six weeks. However, it can be extended for up to three months with the consent of the judicial authority if the person concerned is still unwilling to change his or her behaviour.  The CJEU has clarified the length of detention and how it has to be calculated in the  CJEU judgement Mohammad Khir Amayry v Migration Board, Sweden (Migrationsverket), C-60/17, 13 September 2017. This decision must also be taken into account in Switzerland when interpreting the national detention provisions: the maximum period of six weeks provided for in this provision, within which the transfer of a person taken into custody must take place, applies according to the interpretation of the CJEU, in the event that the person is already in detention if there is tacit or explicit acceptance of the request to take charge or take back responsibility by another Member State or the time from which the appeal or review pursuant to Art. 27 Paragraph 3 of the Dublin III Regulation no longer has a suspensive effect.

The Federal Court concluded that the requirements of the Article 28 of the Dublin III Regulation take precedence over national legislation, according to CJEU case law, insofar as the provisions of Article 76a par. 4 of the Foreigners and Integration Act is not compatible with the Dublin III Regulation.

Based on the enforceability of the transfer to Belgium as of 4 January 2021, the applicant was already in detention for six weeks on the 26 February 2021 and thus the detention after 8 April 2021 was illegal.