Facts
The appellant A. is from Jordan and married a Swiss woman in 2000. He was then granted a residence permit in the canton of Basel-Stadt, which was later transferred to the canton of Aargau. During the period from 2004 to 2009, A. was convicted several times under criminal law, resulting in a total of 42 months of imprisonment. The Migration Office of the Canton of Aargau subsequently issued a warning to A. under the Aliens Act. After a second separation from his wife in 2010, the State Secretariat for Migration (SEM) refused to consent to the extension of A.'s residence permit on 12 April 2012 and ordered his deportation from Switzerland.
A. filed a complaint against this decision, which was dismissed by the Federal Administrative Court on 6 January 2014. Thereupon, A. appealed to the Federal Supreme Court in a public law matter to obtain the extension of his residence permit.
Considerations
The Federal Supreme Court first examined the legality of the SEM's refusal to consent. It concluded that the provisions in Article 85 paragraph 1 letters a and b of the Ordinance on Admission, Residence and Employment (VZAE) do not meet the requirements for a valid delegation of legislation. The SEM cannot, therefore, base its refusal to consent to the extension of a residence permit on these provisions if a cantonal appeal authority has already decided on the issue of the permit.
However, in cases where the cantonal immigration authority submits the matter to the SEM before making its own decision on the permit, the consent requirement is…