Facts
A.X., a Mexican national, had been living in the USA since 2007, where he met the Swiss national B.X. Their relationship resulted in the birth of their daughter C.X. In May 2009, B.X. divorced her first husband and returned to Switzerland in the spring of 2010. A.X. followed her shortly afterwards, and they married in August 2010. However, in the fall of 2010, there were physical altercations between the spouses, as a result of which B.X. suffered minor injuries.
The marriage was divorced in April 2011, with the mother being granted parental responsibility for C.X. and the father being granted visitation rights. In December 2011, the Migration Office of the Canton of Thurgau rejected the extension of A.X.'s residence permit and ordered his deportation from Switzerland. A.X. unsuccessfully appealed this decision to the Department of Justice and Security and the Administrative Court of the Canton of Thurgau.
A.X. ultimately filed a public law appeal with the Federal Supreme Court, which upheld the appeal and remanded the case to the lower instance for further clarification.
Considerations
The Federal Supreme Court states that according to Art. 50 para. 1 lit. b of the Foreign Nationals Act, there may be an entitlement to an extension of the residence permit if important personal reasons make a further stay in Switzerland necessary. Such reasons may, in particular, lie in a relationship worthy of protection with a child present in Switzerland.
The Federal Supreme Court finds that the requirements for the intensity of the affective relationship between the non-custodial parent and the child must be adapted due to the development of visitation rights in recent years. For foreigners who already had a residence permit based on a now dissolved marriage, the requirement of a particularly intense affective relationship is deemed to be fulfilled if personal contact is exercised within the framework…