Facts
Y. (born 1974) is from Algeria and stayed in Switzerland from 2000 to 2003 within the framework of an asylum procedure. In March 2004, he received a temporary short-term residence permit to prepare for his marriage to a Turkish national residing in Switzerland. Since March 2005, Y. has had a residence permit.
On 15 July 2011, Y. married his compatriot X., who had been staying in Switzerland with a 90-day visitor's visa ("Schengen visa") since 11 June 2011. On 18 July 2011, X. applied for a residence permit to stay with her spouse. However, the Migration Office of the Canton of Zurich ordered her to leave the Schengen area, as she was now seeking permanent residence, contrary to the original purpose of her visit ("family/friend visit").
Considerations
The Federal Supreme Court upholds the appeal of Y. and X. It holds that X.'s entry with a valid Schengen visa was lawful and that her marriage within the validity period of the visa did not forfeit the right to family reunification. The competent migration authority is therefore obliged to initiate the permit application procedure and examine the family reunification.
While the law generally provides that the decision on the permit must be awaited abroad, under Art. 17(2) of the Foreign Nationals Act, the authority may allow the stay during the procedure if the admission requirements are…