Separation of powers violated by denial of residence permit
Published: Wednesday, Jun 26th 2024, 12:20
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The Federal Administrative Court criticizes the practice of the State Secretariat for Migration regarding residence permits. According to the Foreign Nationals Act, the federal government can currently refuse to grant a permit despite a decision to the contrary by a cantonal appeal authority. The court considers this to be a violation of overriding law.
In this specific case, a Portuguese national suffering from cancer and unable to work applied for a residence permit in 2015 - based on the right to remain provided for in the Agreement on the Free Movement of Persons. The Office for Population of the Canton of Vaud rejected his application and ordered his removal from Switzerland in 2017. In 2019, the Vaud Cantonal Court upheld the man's appeal. The ruling was not appealed to the Federal Supreme Court.
According to a ruling published by the Federal Administrative Court on Wednesday, the cantonal Office for Population submitted the permit to the State Secretariat for Migration (SEM) for approval. The SEM did not consider the requirements for the right to remain to be met and refused to give its approval. The person concerned lodged an appeal against this with the Federal Administrative Court.
Authority overturns court decision
The so-called approval procedure is intended to enable the SEM to exercise federal supervision throughout Switzerland. In June 2019, an amendment to Article 99 of the Federal Act on Foreign Nationals and Integration (FNIA) came into force. Since then, the SEM has been expressly authorized to refuse its approval even if the granting or extension of the permit is based on the decision of a cantonal appeal authority.
In this case, the SEM refused to give its approval, even though a cantonal court of last instance had ruled in favor of granting the permit. According to the Federal Administrative Court, such a practice violates the principle of separation of powers and fundamental procedural guarantees enshrined in the Constitution and the European Convention on Human Rights.
Lodge a complaint
If the SEM is of the opinion that the granting of a permit is not justified, it must, according to the Federal Administrative Court, appeal the corresponding court decision to the Federal Supreme Court - if this possibility exists at all. In such a situation, only the Federal Supreme Court can overturn a cantonal court decision.
The Federal Administrative Court upheld the Portuguese national's appeal and overturned the SEM's decision. After examining the requirements for the right to remain in Switzerland, it ruled in favor of granting a residence permit. The SEM has the right to appeal against this decision to the Federal Supreme Court. (Judgment F-2182/2021 of 6.6.2024)
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