Facts
The appellant, an Angolan citizen, filed an application for a residence permit in Switzerland in February 2011 to marry his Swiss fiancée. The Migration Office of the Canton of Zurich did not consider the application, as the appellant had already had a rejected asylum application and therefore had no right to a permit. The appellant appealed to the Administrative Court of the Canton of Zurich, which confirmed the decision of the Migration Office.
The appellant filed an appeal with the Federal Court and requested that the judgment of the Administrative Court be set aside and that he be granted a residence permit or a short-term residence permit to prepare for the marriage. He argued that the refusal of the permit violated his right to protection of family and private life (Art. 8 ECHR and Art. 13 Cst.) and his right to marry (Art. 14 Cst. and Art. 8 in conjunction with Art. 12 ECHR).
Considerations
The Federal Court decided that the appellant has a potential right to the requested permit, as he claims to live with a Swiss citizen and marry her. The court examined whether the relationship between the appellant and his fiancée has sufficient stability to establish a right to a permit under Art. 8 ECHR or Art. 13 para. 1 Cst.
The court found that the relationship between the appellant and his fiancée is not yet secure and stable enough to be equivalent to a marriage. The court noted that the appellant's partner suffers from depression and that the care provided by the appellant is beneficial according to her parents and doctors, but this is not sufficient to establish a right to a permit under Art. 8 ECHR or Art. 13 para. 1 Cst.
However, the court decided that the lower court wrongly failed to consider the appellant's arguments regarding the issuance of a short-term residence permit for the purpose of preparing for the marriage. The court noted that the migration authorities, in…