Expulsion of criminal foreigners in Switzerland: the ambiguous role of criminal courts between automatism and hardship regulation

Abstract

In a 2010 referendum, the Swiss people approved the ‘Expulsion Initiative’. This popular initiative aimed at automatically expelling all foreign nationals if they committed certain criminal offences or unlawfully received social benefits, independently of their sentence. The popular initiative was widely criticised because, amongst others, the proposed automatism was deemed to conflict with various precepts of international law. In order to address these conflicts, the Swiss Parliament, when implementing the popular initiative in 2016, introduced the so-called ‘hardship clause’ which authorised the criminal courts, when convicting a foreign national, to refrain from expelling that individual, but only in ‘exceptional’ situations where expulsion would cause considerable personal hardship. The creation of this statutory hardship clause and its practical application by the Swiss criminal courts offer a case in point for accommodating political strategies of mass deportation of foreigners to limitations arising from (notably international) legal (notably human rights) provisions. What makes the Swiss case particularly intriguing is that via the instruments of the popular initiative and the referendum, ‘the people’ are directly involved in these processes, thus offering populist political movements an extraordinary platform to promote their political agenda.

Keywords: Crimmigration, deportation, expulsion, hardship clause, human rights, populism, Switzerland