The Federal Council has passed draft legislation which increases the sanctions for airlines which allow foreign passengers to fly without sufficient travel documents (eg, passport, visa or permit to stay) to enter the Swiss territory. The proposed legislation is intended to reduce the number of people who arrive in Switzerland with insufficient identification. In 2011 a violation of the regulations was reported in almost 1,000 cases. Under the existing legislation, however, sanctions are difficult to impose. This is because in most cases it is practically impossible (with reasonable effort and measures) to prove that an airline has violated the standard of care, in particular at the airport of departure.
The legislation applies to airlines which transport passengers from an airport of departure outside the Schengen Area to a Swiss international airport.
Among other things, the proposed legislation would shift the burden of proof to the airline, which would be required to demonstrate that it has complied with the standard of care in the event that a passenger provided insufficient travel documentation. It is expected that such burden of proof would facilitate the enforcement of sanctions, while also acting as a deterrent for airlines. Two categories of lump-sum fines (rather than a fine range based on the degree of negligence) would penalise regular and severe violations of the standard of care and of reporting obligations (upon request by the competent authorities, airlines would have to forward an accurate and complete passenger data list for specific flights, airports or countries of departure). The proposed lump-sum fines are as follows:
- Transportation of a passenger in violation of the duty of care in respect of sufficient travel documents – Sfr4,000 (approximately €3,330) per passenger and in severe cases Sfr16,000 (approximately €13,320) per passenger.
- Violation of reporting obligations – Sfr4,000 (approximately €3,330) per flight and in severe cases Sfr12,000 (approximately €10,000) per flight.
In turn, the proposed legislation provides exceptions through which airlines could avoid sanctions. For example, no violation of the standard of care would be found if the airline could prove that it had implemented all necessary and reasonable organisational measures to avoid transporting passengers without sufficient travel documentation. The same would apply if:
- it was not possible to verify the falsification of, or other tampering with, travel documents;
- it was not possible to verify that the travel documents did not relate to the person in question; or
- the Swiss authorities approved entry into the Swiss territory.
In case of a violation of reporting obligations (transmission of passenger data list), an exception would be available, among other things, if the airline could prove that transmission of the required data was not possible due to technical reasons beyond its control.
The proposed legislation also serves as a legal basis for the implementation of automatic data exchange between the Advanced Passenger Information system and other databases (eg, ZEMIS, RIPOL, the Schengen Information System and others), and transmission of the results to the competent border authorities.
Consultation on the proposed legislation is underway with the Swiss cantons and interested organisations. The consultation will end on October 18 2012.
Originally published by International Law Office, July 2012
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