Facts
The complainant, a Serbian national, entered Switzerland in 1983 and received a yearly residence permit in 1989. He is married in his third marriage to a Croatian woman and has a son born in 2005 who lives abroad. The complainant was convicted several times between 1987 and 2003 and had no gainful employment since 2001. In 2004, he received a full IV pension and from 2005 a 3/4 IV pension. The Migration Office of the Canton of Lucerne rejected his application for a settlement permit and refused to extend his residence permit. The complainant filed a subsidiary constitutional complaint against the decision of the Justice and Security Department of the Canton of Lucerne.
Considerations
The Federal Court examined the complainant's entitlement to file a subsidiary constitutional complaint. It found that the complainant had no legal right to an extension of the residence permit and that the complaint in public law matters was excluded. The Federal Court decided that the provision on entitlement in Art. 115 lit. b FSCA is to be interpreted in the sense of previous practice and that cantonal decisions for which Art. 83 FSCA makes appeal to the Federal Court dependent on the existence of a legal right cannot be challenged before the Federal Court solely on the basis of the prohibition of arbitrariness by means of a subsidiary constitutional complaint in the absence of such a right.
The Federal Court dismissed the subsidiary constitutional complaint because…