Facts
The appellant, a Turkish national, married a Swiss woman in 1987, after his asylum application was rejected. The couple lived together for about three years, but experienced difficulties and eventually lived apart from 1990. The appellant applied for an extension of his residence permit, but the Cantonal Office for Population and Foreign Police of the canton of Vaud refused, considering the marriage to be fictitious. The Administrative Court of the canton of Vaud confirmed this decision.
The appellant filed an administrative appeal with the Federal Court, invoking Article 7 of the Federal Act on Foreign Nationals (RSFNA) and Article 8 of the European Convention on Human Rights (ECHR). He also argued that he was living in a marital union with another Swiss woman and had a child with her.
Considerations
The Federal Court examined the conditions for applying Article 7 RSFNA, which provides that the foreign spouse of a Swiss national is entitled to the granting and extension of a residence permit. The Court considered that the legislature had waived making the right to a residence permit dependent on the common life of the spouses, but that abuse of rights could be invoked if the foreign spouse used the marriage to obtain a residence permit without intending to create a genuine marital union.
The Court also examined the indicators that could establish the existence of a fictitious marriage, such as the large age difference between the spouses, the existence of an entry ban in Switzerland against the foreign spouse, and the absence of a common life between the spouses. However, the Court considered that these indicators were not sufficient to establish the existence of a…