Facts
The complainant, a Serbian citizen, came to Switzerland in 1983 at the age of 12 and has had a residence permit ever since. He married a compatriot in 1992 and has two children. The family lived in Switzerland until 1995, then the wife and children left the country. In 1999, they returned and the complainant again applied for family reunification, which was rejected. The complainant appealed this decision to the Administrative Court of the Canton of Lucerne, which did not entertain it, as it denied a legal claim to family reunification.
The complainant lodged an appeal with the Federal Court, which now has to decide the case. The question is whether the complainant has a legal claim to family reunification, even though he only has a residence permit and not a settlement permit.
Considerations
The Federal Court first examines whether the complainant has a legal claim to family reunification. It finds that neither the statutory nor the regulatory law provides for such a claim. Art. 17 para. 2 RSFNA requires a settlement permit for family reunification, which the complainant does not possess.
The court then examines whether the complainant can invoke Art. 8 ECHR (right to respect for private and family life) or Art. 13 para. 1 Cst. It finds that these guarantees are not absolute and that it is a matter of weighing interests. The complainant must have a established right of residence in Switzerland to invoke these guarantees.
The court concludes that the complainant has a established right of residence in Switzerland, as he has been living in Switzerland for over 20 years, speaks fluent German, and no longer maintains any ties to his home country. His family, including his…