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Deportations: More expulsions from the country for social abuse

The hardship clause is still often used: in four out of ten cases, the judiciary waived mandatory expulsion from the country in 2021. However, it tightens the pace towards people who cheat on social security.

The expulsion from the country is often followed by detention pending deportation.

Janine Schranz / NZZ

Running is sport, and sport is not work: True to this logic, it never occurred to the amateur runner from Ethiopia to declare his many prize money to the social authorities as income. As an asylum seeker in Switzerland, he lived on social welfare for several years. During this time he is said to have saved tens of thousands of francs from prize money.

In mid-April, he had to appear in court for illegally receiving social benefits in the canton of Bern. According to media reports on the case, the man was found guilty. What obviously hurt him the most was that the court issued him a five-year expulsion from the country.

The case fits the bill. It seems that in recent months, prosecutors and courts have been getting tougher on foreigners who take advantage of the welfare state. The history is long. In 2010 the deportation initiative of the SVP was accepted. The implementation came into effect in 2016. Since then, the Criminal Code has included a long catalog of offenses that, in principle, always result in foreigners being expelled from the country “regardless of the amount of the penalty”.

The courts can only dispense with the eviction “in exceptional cases”. This is what the hardship clause, which Parliament has enshrined in the law, provides for. In addition to crimes such as murder or drug trafficking, the deportation catalog also includes less serious crimes, which include the “illegal receipt of social security or social assistance benefits”.

Country expulsion in every fifth case

In practice, it initially looked as if the determination would remain a dead letter. In 2019, around 120 foreigners were convicted of social abuse; expulsion from the state was only the result in eight cases (almost 7 percent). In 2020, the rate was even lower at 4 percent: only 7 out of 180 convicts were obliged to leave Switzerland.

Last year, however, the courts suddenly ruled more severely: a good 50 out of 230 convicts were expelled from the country. The quota rose to a good 22 percent. This is shown by figures on criminal convictions in 2021, published by the Federal Statistical Office (BfS) on Monday.

Significantly more country expulsions for social abuse

Convictions of foreigners for illegally receiving social insurance or social assistance benefits

Yearnumber of convictions
20191226.6
20201803.9
202123422.6

Nothing can be found in the documents of the BfS about the reasons. It is conceivable that more cases of asylum seekers had to be judged in which the courts were more likely to issue expulsions from the country than in the case of people with a secure right of residence.

The Federal Supreme Court is likely to play an important role. Especially in comparison with some cantons, where the application of the new deportation rules was noticeably mild, the highest court has followed the law more consistently. A case that the Federal Supreme Court had to rule on last year is a symbol of this: a Kosovan woman cheated the unemployment insurance fund out of CHF 17,000 by providing incorrect information. It was a repeat act. The fact that she came to Switzerland as a girl and that her husband and adult children live here did not protect her from being expelled from the country.

Dismissal despite personal hardship

The federal judges did not deny that the eviction in her case was associated with personal hardship. However, this alone is not sufficient to apply the hardship clause. It requires two things: First, the expulsion must cause a “severe personal hardship” for the person concerned. Secondly, his private interest in staying here must be greater than Switzerland’s public interest in sending him away. Numerous individual factors are important here, as court judgments show. The Kosovar, for example, could have stayed sooner if she had been better integrated. In the case of the Ethiopian runner, the fact that his application for asylum had meanwhile been rejected played a role.

All in all, however, social abuse is still one of the crimes for which the judiciary relatively often refrains from expulsion from the country. Overall – across all offenses – the courts expelled 59 percent of those convicted last year. The ratio was thus similar to that of previous years. A good four out of ten people were thus allowed to remain in the country, even though they had committed a catalog crime. The question of whether one can still speak of exceptional cases is politically controversial. However, representatives of the judiciary argue that their task is not to meet a quota, but to assess the specific individual case.

The statistics also reveal that the seriousness of the offense plays a major role. The four convicted foreign murderers last year, for example, all received expulsion from the country. At the other end of the scale are criminal offenses such as embezzling withholding taxes or simply cheating on social security or welfare.

Big differences from murder to tax fraud

Convictions of foreigners for crimes that, by law, generally result in mandatory expulsion from the country; 2021, selected crimes

offensenumber of convictions
promotion of prostitution10

100

murder4

100

intentional killing35

88.6

serious case of drug trafficking715

84.3

commercial stolen goods5

80

rape16

75

robbery129

69.8

human trafficking6

66.7

theft and trespassing487

65.5

arson17

47.1

grievous bodily harm66

47

deprivation of liberty and kidnapping23

39.1

endangerment of life23

34.8

sexual acts with children50

34

unlawful receipt of benefits (social insurance or social assistance)234

22.6

pornography177

9

simple fraud in social security, social assistance or public law. duties154

3.9

embezzlement of withholding tax42

2.4

tax fraud3

0

Total2 716

58.8

It may come as a surprise that simple welfare fraud has resulted in expulsion from the country less often than the less serious “unlawful reference”. This could be explained by the fact that the offense is more frequently committed by people who live regularly in Switzerland. With them, the courts are much more reluctant to order evictions.

Hardly any expulsions from foreigners residing in Switzerland

Convictions of foreigners for crimes that, by law, generally result in mandatory expulsion from the country; by residency status, 2021

statusnumber of convictions
Temporary or illegal in the country141787
Wohnbev., born abroad90623.4
Wohnbev., born in Switzerland1859.2

source site-111