Facts

Parties and procedural history:

The complainant, a Kosovar national born in 1985, entered Switzerland on 12 June 2021 and married in August 2021 [B.] (born 1981), a Swedish national with residence rights in Switzerland. She was subsequently granted an EU/EFTA residence permit valid until 24 August 2026. On 13 October 2021, the complainant moved out of the shared household and went to a women’s shelter after reporting incidents of domestic violence to the Zurich Cantonal Police on the same day. The husband reported her as missing to the police on 18 October 2021 and informed the migration authority of her departure. On 26 October 2021, he filed for divorce.

The Zurich Cantonal Migration Authority revoked the complainant’s residence permit on 8 December 2023 and ordered her removal from Switzerland. The appeal against this decision was dismissed by the Zurich Cantonal Security Directorate on 29 February 2024. The Zurich Administrative Court upheld the lower-instance decisions with a judgment dated 12 September 2024. The complainant filed a public-law appeal with the Federal Supreme Court on 4 November 2024, seeking the annulment of the lower-instance judgment and the retention of her residence permit. Alternatively, she requested that the case be referred back to the lower instance for further fact-finding. With a presidential order dated 5 November 2024, the appeal was granted suspensive effect.

Legal context:

The complainant relies on Article 50(1)(b) and (2) of the Federal Act on Foreign Nationals and Integration (FNIA), which provides a right to a residence permit or its extension if, following the dissolution of the marriage, important personal reasons such as domestic violence exist. She claims to have been a victim of domestic violence by her husband. However, the lower instances denied the existence of domestic violence, as the complainant was unable to sufficiently substantiate the allegations. The criminal proceedings against the husband were discontinued due to lack of evidence.

Considerations

Admissibility of the appeal:

The Federal Supreme Court first examines the admissibility of the public-law appeal. Under Article 83(c)(2) FSCA, such an appeal against decisions concerning permits is excluded if neither federal law nor international law grants a right. The complainant, however, claims a right to residence under Article 50(1)(b) and (2) FNIA, asserting that she was a victim of domestic violence. The Federal Supreme Court notes that a third-country national may rely on Article 50 FNIA despite the formal dissolution of the marriage, provided that the EU citizen from whose presence the residence right originally derived is still residing in Switzerland. In the present case, the husband was still resident in Switzerland at the time of the lower-instance judgment, and the complainant had made a tenable claim to have been a victim of domestic violence. The appeal is therefore admissible. The further substantive admissibility requirements under the FSCA are also met, so the Federal Supreme Court will hear the appeal on the merits.

Applicable law and transitional provisions:

A revised version of Article 50 FNIA, which also governs residence following domestic violence, entered into force on 1 January 2025. However, proceedings already pending at the time of entry into force of this amendment remain subject to the version of Article 50 FNIA in force until 31 December 2024. In the present case, the old version of Article 50 FNIA applies, as the appeal was filed before the new provision came into force.

Evidentiary requirements when claiming domestic violence:

The Federal Supreme Court reiterates its case law on the requirements for proving domestic violence. All forms of violence, whether physical or psychological, must be taken seriously. Domestic violence requires systematic abuse aimed at exerting power. A single altercation or verbal complaints are insufficient. Rather, the psychological integrity of the affected person must be severely impaired to the extent that it cannot reasonably be expected of them to maintain the marriage solely for residence law reasons. The complainant bears a far-reaching duty to cooperate in substantiating the alleged violence. This includes medical reports, police reports, witness statements, or other suitable evidence. The permit…