Facts

Parties:

  • Appellant: State Secretariat for Migration (SEM)
  • Respondent: [A.] , represented by attorney Pablo Blöchlinger
  • Migration Office of the Canton of Zurich
  • Security Directorate of the Canton of Zurich

Facts:

The 1980-born [B.] , a national of Ghana, applied on February 8, 2019, for permission to enter Switzerland for the purpose of preparing for marriage with [A.] , a 1970-born compatriot who holds a settlement permit in the Canton of Zurich. On August 30, 2019, [A.] applied for permission for [B.] to enter and for family reunification.

By decision of October 30, 2019, the Migration Office of the Canton of Zurich refused to grant [B.] permission to enter for the purpose of preparing for marriage and to subsequently stay with her future husband. The decision was justified on the grounds that [A.] receives a disability insurance pension, has a very low income, and receives monthly supplementary benefits of CHF 517.—. Consequently, he does not have the necessary means to finance the maintenance for himself and his future wife, so that in the event of [B.] 's move, there is a high risk of needing social assistance. Therefore, the requirements of Art. 43 para. 1 lit. c and e FNIA are not met.

The appeal lodged by [A.] against this decision was dismissed by the Security Directorate of the Canton of Zurich by decision of May 12, 2020.

The appeal lodged by [A.] against this decision was upheld by the Administrative Court of the Canton of Zurich, 4th Division, by judgment of February 18, 2021, and the Migration Office was invited to grant [B.] permission to enter and stay for the purpose of preparing for marriage with [A.] .

By submission of April 14, 2021 (postal date), the State Secretariat for Migration SEM filed an appeal in public law matters with the Federal Supreme Court, requesting that the judgment of the Administrative Court of the Canton of Zurich of February 18, 2021 be set aside. Alternatively, the contested judgment should be set aside and the case referred back to the lower court for supplementary factual investigations and a new decision.

Considerations

The appeal in public law matters against the final cantonal decision is admissible (Art. 82 lit. a, Art. 86 para. 1 lit. d, Art. 90 FSCA), since the SEM claims that the lower court wrongly affirmed a claim to a residence permit (Art. 83 lit. c no. 2 FSCA). The right to appeal of the SEM arises from Art. 89 para. 2 lit. a FSCA in conjunction with Art. 14 para. 2 of the Organizational Regulations for the Federal Department of Justice and Police of November 17, 1999 (OrgO-FDJP).

With the appeal in public law matters, in particular, the violation of federal and international law can be challenged (Art. 95 lit. a and b FSCA). In the examination, the Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA) and has full cognizance (Art. 95 FSCA). With regard to the violation of fundamental rights and cantonal law, a qualified obligation to state grounds and to substantiate applies (Art. 106 para. 2 FSCA).

The Federal Supreme Court bases its judgment on the facts established by the lower court (Art. 105 para. 1 FSCA). It can only correct or supplement the factual findings of the lower court if they are obviously incorrect or are based on another violation of the law within the meaning of Art. 95 FSCA (Art. 105 para. 2 FSCA) and if the correction of the defect can be decisive for the outcome of the proceedings.

The subject of the dispute in the federal court proceedings is the question of whether the fiancée of the respondent is entitled to the issuance of a (short-term) residence permit for the purpose of preparing for marriage. According to case law, the migration authorities, in view of Art. 12 ECHR or Art. 14 Cst., are obliged, in concretization of the purpose of the law of Art. 98 para. 4 CC, to grant a (short-term) residence permit for the preparation of the marriage if there are no indications that the foreign person is acting in an abusive manner (sham marriage, abusive invocation of the family reunification provisions, etc.), and it is clear that she will be able to stay in Switzerland with the spouse after the marriage, i.e. she also fulfills the further requirements necessary for this.

The lower court essentially holds that in the application of Art. 43 para. 1 lit. e FNIA, an interest balancing is to be carried out, whereby the criteria developed for the examination of dependency on supplementary benefits according to Art. 43 para. 1 lit. c FNIA can be used. In this…