Facts
X., a Brazilian national born in 1974, received an annual residence permit on the basis of family reunification after marrying on 26 April 2001 with Y., an Italian national born in 1961, who lives in the canton of Fribourg with a settlement permit. On 16 April 2002, the Cantonal Aliens Police and Passport Office of Fribourg informed X. that it was considering not renewing her residence permit, on the grounds that she had been living separately from her husband since 2 December 2001 according to his statements or since 23 January 2002 according to her own statements. By decision of 4 December 2002, the Cantonal Police Department of Fribourg refused to renew X.'s residence permit and gave her a 30-day deadline to leave Switzerland, considering that the marriage had lost its substance and that the wife was only maintaining it in order to remain in Switzerland, which constituted an abuse of rights. Upon appeal, the Administrative Court of the Canton of Fribourg upheld the appeal and referred the case back to the Cantonal Office for the extension of X.'s residence permit. The Federal Office for Immigration, Integration and Emigration appealed against this judgment, concluding for its annulment and the confirmation of the aforementioned decision of the Cantonal Department.Considerations
The Federal Tribunal upheld the appeal, annulled the contested judgment and referred the case back to the Administrative Court for further investigation and a new decision in accordance with the considerations.
According to case law, the spouse of an EU/EFTA worker does not necessarily have to live permanently with him/her in order to benefit from the right to family reunification provided for in the Agreement on the Free Movement of Persons. However, there is an abuse of rights to invoke this right when…