Refusal to transmit a request for provisional admission for family reunification

Facts

The case concerns two Moroccan nationals, A. and her daughter B., who applied to benefit from family reunification with their partner and father, C., an Iraqi national who has been granted provisional admission in Switzerland. A. entered Switzerland illegally in 2007 and has been residing there without authorization. C. filed an asylum application that was rejected, but he was granted provisional admission due to security conditions in his country of origin. A. and C. entered into a religious union in 2011 and had a daughter, B., in 2012.

On June 19, 2012, A. requested to be included in C.'s provisional admission, but the Population Service of the canton of Vaud transmitted this request to the Federal Office with a negative opinion. The Federal Office returned the case to the cantonal authorities, who refused to transmit the applicants' request for provisional admission to the Federal Office for examination and decision.

The applicants filed an appeal with the Administrative and Public Law Court of the Vaud Cantonal Court, which rejected the appeal and confirmed the decision of the Cantonal Service. The applicants then filed a public law appeal with the FSCA.

Considerations

The FSCA examined the question of whether the Cantonal Service was required to transmit the applicants' request for provisional admission to the Federal Office for examination and decision. The FSCA considered that the family reunification procedure provided for in Article 85 paragraph 7 of the Foreign Nationals Act (FNA) was applicable in this case, and that the cantonal authorities were required to transmit the applicants' request for provisional admission to the Federal Office.

The FSCA also considered that the decision of the Cantonal Service to refuse the transmission of the request for provisional admission was arbitrary, as it did not take into account the family situation of the applicants and their right to benefit from family reunification. The FSCA also considered that the family reunification procedure provided for in Article 85 paragraph 7 FNA was distinct from the provisional admission procedure provided for in Article 83 FNA.

The FSCA concluded that the refusal of the Cantonal Service to transmit…