Inadmissibility of appeal against the Federal Administrative Court’s decision not to enter into proceedings concerning visa issuance

Facts

The complainant, a Russian national, submitted an application for a Schengen visa for a 90-day stay to attend a language course at the Swiss representation in Moscow on 17 February 2023. This application was rejected by means of a formal decision. The complainant filed an appeal against this decision, which was dismissed by the State Secretariat for Migration (SEM) on 24 March 2023. The complainant then lodged an appeal against this dismissal with the Federal Administrative Court, which was rejected by judgment on 16 May 2024. An appeal against this judgment to the Federal Supreme Court (2C_316/2024) was dismissed as manifestly inadmissible on 21 June 2024.

On 24 July 2024, the complainant filed a petition for revision with the Federal Administrative Court, which was dismissed as untimely by judgment on 15 August 2024. The complainant lodged an appeal against this judgment with the Federal Supreme Court on 11 September 2024. The complainant sought the annulment of the contested judgment, the setting of a time limit for the revision petition and the examination of the revision petition. In addition, the complainant requested free legal aid and stated that as of 11 September 2024, they no longer had a delivery address in Switzerland.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal in public law matters. Pursuant to Art. 83 lit. c no. 1 FSCA, an appeal against decisions in the field of foreign nationals’ law concerning entry is excluded. This provision also covers visa issuance, as recognised in case law and legal doctrine. The complainant argued that they had a right to a visa under international agreements (e.g. the Agreement of 2 September 1993 on the exchange of trainees and the Agreement of 21 September 2009 on readmission). However, the Federal Supreme Court noted that the exception provided for in Art. 83 lit. c no. 2 FSCA, which applies where federal or international law grants a right to a foreign nationals’ permit, only applies to permit procedures, not to decisions not to enter into proceedings such as the one at issue.

The Federal Supreme Court further found that the complainant did not fall within the scope of the Agreement on the Free Movement of Persons between Switzerland and the EU (AFMP), which would have constituted a further exception to the inadmissibility of the appeal. Moreover, the…