Facts
X., a Cameroonian national, filed an asylum application in Switzerland in 2003, which was rejected. He remained illegally in Switzerland. In 2010, X. filed an application for a residence permit in order to marry Y., a Cameroonian national holding a residence permit. The Population Service of the Canton of Vaud refused to consider this application, invoking the principle of the exclusivity of the asylum procedure. X. and Y. appealed against this decision, arguing a violation of their right to marriage guaranteed by Art. 12 ECHR.Considerations
The Federal Tribunal upheld the appeal. It considered that the automatic and indiscriminate refusal of access to marriage for all foreigners residing illegally in Switzerland would be likely to violate the guarantee of the right to marriage provided for in Art. 12 ECHR and Art. 14 Cst. However, Art. 98(4) CC, which requires the civil registrar to verify the legality of the foreign fiancé's residence, leaves no room for manoeuvre for the civil registrar. It is therefore the responsibility of the foreign police authority, in the procedure for authorizing residence for the purpose of marriage, to take into account the requirements related to respect for the right to marriage and the principle of proportionality.
Thus, the foreign police…