{"id":509,"date":"2022-10-10T17:13:37","date_gmt":"2022-10-10T17:13:37","guid":{"rendered":"https:\/\/www.vanconsulting.ch\/?page_id=509"},"modified":"2024-05-27T15:36:21","modified_gmt":"2024-05-27T15:36:21","slug":"blog","status":"publish","type":"page","link":"https:\/\/www.vanconsulting.ch\/en\/blog\/","title":{"rendered":"Blog"},"content":{"rendered":"
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Zurich, 27.05.2024, Panha Van<\/span><\/p>

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Family reunion, obstacle of financial supports<\/strong><\/p>

All the family reunion applications made by foreign nationals who wish to reunite with their spouse in Switzerland must be examined by the competent public authorities. There are many legal requirements that must be fulfilled by the ones who are currently living in Switzerland. One of these requirements is the financial responsibility to ensure that the partners living in Switzerland are capable of financially sponsoring their spouse and of accompanying the children after settling down in Switzerland according to Art. 43-45 of the Federal Act on Foreign Nationals and Integration (FNA).<\/strong><\/p>

The risk of dependency on social aids due to family reunion must be carefully examined by the Cantonal Migration Offices. The Federal Government grants autonomous and sole discretion to each cantonal migration office to have its own method of financial analysis on individual applicants. For example, Canton Zurich normally examines the financial status of applicants during the last twelve months. In contrast, Canton Aargau examines only the last three months.<\/p>

In most of the cases, the family reunion application gets rejected by the Cantonal Migration Office due to insufficient financial support and risk of social aid dependence. The legal question arising here is whether it is legitimate and compliant for each Cantonal Migration Office to use their sole discretion based on their own financial analysis system to make a decision that interferes with the constitutional right of an individual that has been well protected, such as the right to marry and the right to found a family.<\/p>

The applicants who have irregular incomes, receive unemployment funds, or have seasonal or unstable jobs normally receive a negative decision. According to the legal interpretation by the Department of Security of Canton Zurich (acting as lower administrative appeal court) with precedent decision number 2020.0892 dated 19 January 2021,<\/strong> the Appeal Department interpreted that the Cantonal Migration Office shall review the actual and latest financial income situation of the applicant, rather than focusing on the previous incomes. Once there is no concrete danger of welfare dependency, the applicant will not be dependent on social assistance in the future.<\/p>

In the event that the applicant has been registered in the debt enforcement record, the Cantonal Migration Office shall also take into consideration the overall causes of the financial risks, financial circumstance, and financial obligation of each applicant. According to the the Federal Supreme Court of Switzerland 2C_847\/2009 dated 21 July 2010,<\/strong> even though applicants have certain difficulties in fulfilling their apparently partially business-related financial obligations, this is not sufficient to be considered as a reason for revocation according to Art. 62 paragraph E FNA<\/strong> (social assistance dependence).<\/p>

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Zurich, 04.12.2023, Panha Van<\/span><\/p>\n

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Right to marry and right to found a family<\/strong><\/p>\n

\"Marriage of convenience\"<\/strong> , a challenge for the granting of residence permits to third nationals.<\/strong><\/p>\n

The right to marry and the right to found a family are fundamental rights that are recognised with a high degree of protection by domestic and international jurisdictions. Both are constitutionally guaranteed by Article 14 of the Swiss Constitution (BV) as well as Articles 8 and 12 of the European Convention on Human Rights (ECHR).<\/p>\n

Third nationals (non-EU\/EFTA) who wish to get married with a Swiss citizen or a lawful foreign resident in Switzerland (C or B permit holders) regularly faced a long procedure and a complex examination conducted by the competent public authority. However, this procedure and examination are required by law and necessary in a democratic society. The only possibility legally permitted for third nationals to reunite with their future spouse in Switzerland is to get married, on the condition that the marriage is based on mutual marital relationship and willingness to establish a family.<\/p>\n

According to Article 98 paragraph 4 of the Swiss Civil Code (ZGB), the foreign national must be in possession of a valid resident permit during the course of the marriage preparatory procedure. As per Article 17 paragraph 2 of the Federal Act on Foreign Nationals and Integration (AIG), the competent public authority shall issue a short-term resident permit or an entry visa once the marriage admission requirements are clearly fulfilled and once the marriage is likely to take place in a foreseeable future. This permission has been firmly confirmed in the judgement of the Federal Supreme Court of Switzerland 2C_349\/2011 dated 23 November 2011 in which the judge stated that the Article 98 of the ZGB could contradict Article 12 of the ECHR. This was the first time that a Supreme Court judge had issued a precedent breaking the legal barriers for the benefit of foreigners to allow them to easily get married in Switzerland without leaving the country.<\/p>\n

It is basically up to the competent public authority to prove the marriage of convenience (Article 90 AIG). The factors that may lead them to suspect that marriage is sham are:<\/p>\n

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  • Lack of an adequate contribution to marital obligations.<\/li>\n
  • Circumstances of getting to know each other.<\/li>\n
  • Short duration of the relationship.<\/li>\n
  • Imminent expulsion of applicant.<\/li>\n
  • Difficulties in communication (language).<\/li>\n
  • Significant age difference in marital relationship.<\/li>\n
  • Proof of relationship: social media communications and photos.<\/li>\n
  • Payment of compensation for the marriage.<\/li>\n<\/ul>

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    However, the marriage of convenience is very difficult to prove. A cross-examination and concrete analysis must be carried out by the competent public authority based on circumstance situation, concrete evidence, unambiguous conclusion and actual facts according to the decision of the Federal Supreme Court of Switzerland 2C_613\/2019 dated 14 November 2019.<\/p>\n

    In addition, the decision of the Federal Supreme Court of Switzerland 2C_491\/2022 dated 17 November 2022 has interpreted that the competent public authority shall review the concrete willingness, common wishes and strong commitment of couple to live together in the future, to establish a long-term economic co-habitation based on physical and emotional affection, love and spiritual connection. The control after the marriage can be overseen by the local authority.<\/p>\n

    Generally, although various indications of a planned marriage of convenience could be identified, taken as a whole these ambiguous conclusions are not legally sufficient to refute the existence of an actual desire of the couple to marry.<\/p>\n

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    Zurich, 01.05.2023, Panha Van<\/span><\/p>

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    Work permit:\u00a0<\/span><\/b><\/p>

    Work permit procedure for Third-country nationals<\/span><\/b> (non-EU\/EFTA):<\/b><\/span><\/p>

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    Switzerland remains one of the most attractive countries for highly skilled workers because of the country's high standard of living, high salaries and economic competitiveness. However, Switzerland imposes very restrictive measures and a limited work permit quota for employers to bring Third-country nationals. According to the Federal Act on Foreign Nationals and Integration (FNIA), the following legal conditions must be fulfilled:<\/span><\/p>

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