Facts

The case concerns an employer, [B.], who employed and housed a foreigner, [L.], without a residence permit or work authorization, from August 1984 to March 1986. The employer provided free housing to [L.] from October 1985 to March 1986. The decision of the expulsion authority of the canton of Basel-Country condemned [B.] for facilitating an illegal stay and for violating Article 3, paragraph 3, of the Foreigners Law (RSFNA). The court of first instance imposed a suspended prison sentence and a fine. The Obergericht of the canton of Basel-Country confirmed this decision, considering that the case was of minor gravity within the meaning of Article 23, paragraph 1, of the RSFNA.

The key facts are as follows

  • The employer employed a foreigner without a work permit or residence permit.
  • The employer provided free housing to the foreigner.
  • The duration of the illegal stay lasted for approximately one and a half years.
  • The employer acted to address a labor shortage in the restaurant sector.

Considerations

The Federal Court examined the decision of the Obergericht and considered that the case was indeed of minor gravity within the meaning of Article 23, paragraph 1, of the RSFNA. The Court took into account the entirety of the illicit behaviors targeted by this provision and ensured that the favorable treatment was not exclusively reserved for cases of « very » minor gravity.

The Court considered that the employer's behavior, who employed and housed a single foreigner without a permit, could still be qualified as minor gravity, even if the illicit situation had lasted for a relatively long time. The Court also took into account the circumstances of the case, in particular…