Family Reunification of a Foreign Child of a Swiss Citizen

Facts

X., a Swiss citizen originating from Kosovo, filed an application for the reunification of his non-marital son A. The Migration Office of the Canton of Aargau rejected the application. X. filed an appeal, which was granted by the Appeals Court for Foreigners' Law of the Canton of Aargau. The Federal Office for Immigration, Integration and Emigration (IMES) then filed an administrative court appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court upholds the appeal and overturns the judgment of the Appeals Court. It makes the following findings: 1. The IMES is legitimized to file an administrative court appeal in order to argue that the cantonal instance has affirmed the existence of a legal entitlement to the disputed immigration permit in violation of federal law. 2. A potential entitlement to family reunification of X.'s son can in principle arise from Art. 17 para. 2 RSFNA. However, this requires either a proven priority bond of the child to the parent living in Switzerland or a justification based on special substantial family reasons, in particular a change in the care arrangements. 3. The Appeals Court has not conclusively assessed the admissibility of the reunification under the aspect of Art. 17 para. 2 RSFNA, so that there is no final cantonal decision in this respect that the Federal Supreme Court…