Facts
The appellant, a 1971-born national of Bosnia and Herzegovina, had entered into a registered partnership with a 1973-born EU national in Germany on 10 November 2012. On 11 June 2014, the EU national, who resided in Switzerland, submitted a family reunification application for the appellant. The appellant received a residence permit EU/EFTA with validity until 6 December 2018 under the family reunification scheme. The women, who were in a registered partnership, separated on 15 October 2016.
The Migration Office of the Canton of Lucerne revoked the appellant's residence permit and ordered her to leave Switzerland. An administrative appeal against this decision was rejected by the Department of Justice and Security of the Canton of Lucerne. The Lucerne Cantonal Court dismissed the administrative appeal lodged against this decision.
The appellant filed a complaint in public law matters with the Federal Court and requested that the judgment of the Cantonal Court be set aside, that the revocation of her residence permit be waived, and that her residence permit be extended.
Considerations
The Federal Court examined the admissibility of the complaint and concluded that the appellant can invoke a permit entitlement under Art. 50 of the Federal Act on Foreign Nationals (FNIA). The question of whether the permit entitlement actually exists is the subject of the substantive review.
The court found that the residence entitlements under Art. 50 FNIA are linked to those under Art. 42 and 43 FNIA and thus require that the spouse or registered partner from whom the permit was derived held Swiss citizenship or a settlement permit in Switzerland. However, it pointed out that the Federal Court's case law states that, in the light of the non-discrimination provision of Art. 2 of the Free Movement of Persons Agreement (AFMP), former spouses of EU nationals are to be treated equally to former spouses of Swiss citizens.
The court concluded that the appellant cannot invoke Art. 50 para. 1 lit. a FNIA, as…