Rejection of an Application for Family Reunification of a Turkish National

Facts

Turkish national [S.A.] entered Switzerland in 1976 under family reunification and received a settlement permit. He married a compatriot in 1981 and had two sons, [T.A.] and [R.A.] . The family left Switzerland in 1992 and did not return within the agreed deadline. [S.A.] applied for the re-issuance of a settlement permit in 1998, which was rejected. In 2000, he married a Swiss-Italian dual citizen and received a residence permit to stay with his wife. [S.A.] submitted an application for the reunification of his son [T.A.] in 2001, which was rejected. The appeal against this decision was not entertained by the Administrative Court of the Canton of Zurich.

The applicants, [S.A.] and [T.A.] , have filed an administrative appeal with the Federal Court and request that the decision of the Administrative Court be set aside and the matter be remanded for re-examination or that the Zurich Migration Office be instructed to grant [T.A.] a residence permit in the Canton of Zurich and issue him a settlement permit.

Considerations

The Federal Court must examine whether the applicants have a legal right to the desired residence permit. According to Art. 4 RSFNA, the foreign police authorities decide, within the framework of the statutory provisions and treaties with foreign countries, at their discretion on the granting of residence or settlement permits. There is therefore no general entitlement to the issuance of a residence or settlement permit, unless the foreigner or their relatives living in Switzerland can invoke a special provision of federal law or an international treaty.

The applicants rely on the Free Movement of Persons Agreement between Switzerland and the European Community. However, the Federal Court has ruled that the step-children of a national of a contracting state are not considered family members within the meaning of Art. 3 Annex I AFMP. Furthermore, there is no cross-border situation with sufficient foreign connection, as the applicant's wife had already entered Switzerland before the Free Movement of Persons Agreement came into force.

The Federal Court has also examined whether the applicants can assert a right of residence under…