Facts
The dual Australian-Austrian citizen Z. received a residence permit on October 2, 1997. On October 10, 1997, he married the Australian national X. She entered Switzerland on December 2, 1997 and received a residence permit under family reunification. On December 2, 2002, Z. was granted a settlement permit based on the agreement on the free movement of persons between Switzerland and Austria. X. then applied to the Migration Office of the Canton of Zurich for the issuance of a settlement permit. However, the competent Federal Office ruled that X. would not be released from federal control until October 1, 2007, and that the settlement permit could not be issued until October 2, 2007 at the earliest.Considerations
The Federal Supreme Court decided that X. has no claim to a settlement permit under Art. 17 para. 2 ANAG. According to this provision, the foreign spouse of a settled person acquires the claim to a settlement permit only if the spouse has held a settlement permit for the entire five-year period of marital cohabitation. Since Z. has only been in possession of the settlement permit since October 2, 2002, X.'s claim can arise at the earliest on October 2, 2007.
X. also cannot derive a claim to a settlement permit from the Agreement on the Free…