Facts
The complainant A.A., a Brazilian national born in 1987, entered Switzerland on 16 March 2020 and registered his partnership with Swiss national B.A. on 26 June 2020. He was subsequently granted a residence permit by decision of 3 July 2020. Since April 2023, the partners have been living separately.
On 25 August 2023, the Migration Office of the Canton of Zurich rejected the complainant’s application for an extension of his residence permit on the grounds that neither hardship due to domestic violence nor health reasons were present. The cantonal legal remedies filed against this decision were unsuccessful. The complainant then filed an appeal in public law matters against the judgment of the Administrative Court of the Canton of Zurich of 19 June 2024, seeking its annulment and the extension of his residence permit. In the alternative, he requested the annulment of the judgment and a remittal to the Migration Office for reassessment.
By presidential order of 29 August 2024, suspensive effect was granted to the appeal. The Administrative Court of the Canton of Zurich sought the dismissal of the appeal, while the cantonal Security Directorate waived a statement. The Federal Supreme Court dismissed the appeal.
Considerations
The subject of the dispute before the Federal Supreme Court concerned whether the complainant was entitled to a right of residence following the dissolution of his registered partnership with a Swiss citizen. The Federal Supreme Court first examined the applicability of the new law, in particular the transitional provision in Art. 126g FNIA, which entered into force on 1 January 2025. This provision stipulates that the new law applies to applications under Art. 50 FNIA submitted before the entry into force of the amendment of 14 June 2024.
The Federal Supreme Court found that the complainant had submitted his application for an extension of the residence permit before the new law entered into force. However, the judgment of the lower court (Administrative Court of the Canton of Zurich) was issued on 19 June 2024, i.e. before the new regulation came into force. The question arose as to whether the transitional provision of Art. 126g FNIA also applies to pending appeal proceedings before the Federal Supreme Court and whether the new law should be applied.
The Federal Supreme Court stated that, in accordance with general principles, substantive changes in the law during appeal proceedings are generally irrelevant. The legality of administrative acts is assessed according to the law in force at the time they are issued. Subsequent changes in the law are only taken into account in exceptional cases where compelling reasons speak in favour of the immediate application of the new law. No such exception was seen in the present case, as the transitional provision of Art. 126g FNIA refers only to pending applications, not to pending appeal proceedings. Furthermore, the wording of the provision did not support its application in federal court proceedings.
The Federal Supreme…