Non-entrance on appeal against a decision not to enter on a late appeal in foreigner law

Facts

The appellant [A.] contested a decision of the Security Directorate of the Canton of Bern (SID) dated 6 July 2023, by which it did not enter on his appeal against the revocation of his residence permit and expulsion due to the late filing of the appeal. The decision was served on the appellant on 10 July 2023.

The Administrative Court of the Canton of Bern also did not enter on the appellant’s appeal against this decision with a judgment dated 17 August 2023. It justified this on the grounds that the appeal filed with the post office on 11 August 2023 was late. A simultaneously filed application for restoration of the time limit was dismissed.

On 13 September 2023, the appellant submitted a submission to the Federal Supreme Court and requested the granting of an “L-visa”. The Federal Supreme Court examined the appeal in public law matters without ordering any instruction measures.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal in public law matters. According to Art. 83 lit. c no. 2 FSCA, an appeal against decisions concerning permits to which neither federal law nor international law grants a right is excluded. This inadmissibility also applies to decisions not to enter or appellate decisions confirming such decisions (FSCA 145 II 168 para. 3; 138 II 501 para. 1.1). Whether the appeal concerned a residence permit to which the appellant would have been entitled could remain open, as the appeal was already inadmissible for other reasons.

Furthermore, the Federal Supreme Court stated that the appeal grounds did not meet the requirements of Art. 42 FSCA. The grounds must be relevant and, in a targeted examination of the considerations that were decisive for the result of the contested decision, plausibly show which rights or legal norms are alleged to have been violated (FSCA 140 III 86 para. 2). When contesting a decision not to enter or an appellate decision confirming such a decision, the legal requests and their grounds must necessarily relate to the considerations of the lower court that led to the non-entrance (Judgments 2C_413/2022 para. 2.1; 2C_470/2021 para. 1.2).

The Federal Supreme Court recalled that the application of cantonal law is only reviewed for violations of federal law, in particular arbitrariness (FSCA 143 I 321 para. 6.1; 141 IV 305 para. 1.2; 141 I 105 para. 3.3.1). In addition, for complaints regarding fundamental rights, including the prohibition of arbitrariness, and cantonal law, there is a qualified obligation to raise and substantiate such complaints pursuant to Art. 106 para. 2 FSCA (FSCA 148 I 104 para. 1.5; 143 II 283 para. 1.2.2; 143 I 1 para. 1.4).

In the present case, the appellant did not address the considerations of the lower court that had led to the non-entrance on his appeal. He merely argued that he had completed his studies and needed time to look for work,…