Facts

Parties and procedural history:

The complainant A., an Iraqi national born in 1979, entered Switzerland in 1998 and unsuccessfully applied for asylum. After marrying a Swiss citizen in 2002, he was granted a residence permit. Following the divorce of that marriage, he married a Kosovo national residing in Switzerland in 2008 and again a Swiss national in 2012, with whom he has two children (born in 2013 and 2020). A. was convicted of several criminal offences, including in 2007 for forgery and traffic offences, in 2009 for driving without a licence and vehicle theft to a prison sentence of ten months, and in 2018 for fraud, forgery, coercion and other offences to a prison sentence of seven years and three months. In 2009 and 2013, he was warned under foreign nationals law. From March 2014, he was in pre-trial detention or serving a prison sentence and was conditionally released in 2018.

In July 2018, the Migration Office of the Canton of Zurich refused to renew A.’s residence permit and ordered his removal from Switzerland. The Administrative Court of the Canton of Zurich partially set aside this decision and invited the Migration Office to renew the residence permit. The Migration Office then initiated a consent procedure with the State Secretariat for Migration (SEM). With a ruling dated 22 April 2021, the SEM refused to consent to the renewal of the residence permit. The Federal Administrative Court dismissed the appeal against this ruling with a judgment dated 14 November 2023. A. then filed a public-law appeal with the Federal Supreme Court, seeking the annulment of the Federal Administrative Court’s judgment and an order for the SEM to consent to the renewal of his residence permit.

Legal framework:

The procedure concerning the renewal of the residence permit was initiated before 18 July 2018. Substantively, the Foreign Nationals Act (FNA) in the version in force until the end of 2018 applied. With the amendment to Art. 99 FNIA, which entered into force on 1 June 2019, the SEM was granted the power to refuse, limit or subject to conditions its consent to decisions of cantonal administrative authorities or appeal instances. Thus, the SEM may refuse consent even after a cantonal court ruling favourable to the person concerned and thereby refuse to renew the residence permit.

Considerations

Examination of the constitutionality and conformity with international law of Art. 99 para. 2 FNIA:

The Federal Supreme Court examines whether Art. 99 para. 2 FNIA is compatible with constitutional and international law requirements, in particular the principle of separation of powers (Art. 30 para. 1 Cst., Art. 191c Cst.), the right to judicial independence, the right to effective legal protection (Art. 13 ECHR, Art. 2 para. 3 UNO-Pact II) and the guarantees of equality of arms, reasonable duration of proceedings and legal certainty. The examination is conducted in the context of the specific case in which the SEM refused to consent to a cantonal court ruling ordering the renewal of A.’s residence permit.

Relationship to Art. 13 ECHR and guarantees of legal protection:

Art. 13 ECHR guarantees the right to an effective remedy when a person alleges a violation of their Convention rights. The guarantee of legal protection is accessory and requires a reasonably arguable claim of a violation of a substantive guarantee under the ECHR. Art. 13 ECHR does not require a specific hierarchy of appeals, but an effective legal remedy that offers the possibility of having the challenged state act annulled or its adverse effects remedied. The effectiveness of legal protection is assessed based on the powers of the authority and the minimum procedural rights, in particular the right to be heard and to a reasoned decision. The Federal Supreme Court finds that the insertion of an administrative procedure under Art. 99 para. 2 FNIA does not violate Art. 13 ECHR, since the person concerned may bring proceedings both against the cantonal authorities and against the SEM. The extension of the proceedings and the role of the complainant in the subsequent appeal procedure do not constitute a violation of equality of arms, as this role is determined by the constitutional and conventional claims to legal protection.

Violation of the principle of separation of powers and judicial independence:

The Federal Supreme Court recognises in the principle of separation of powers (Art. 30 para. 1 Cst., Art. 191c Cst.) a constitutional right that protects individuals from interference with the constitutional order of competences. Under this principle, administrative authorities are bound by final court rulings and may not set them aside or override them, unless such power is…