Rejection of appeal against refusal of residence permit due to lack of credible marital violence and no risk of serious social reintegration difficulties

Facts

The appellant, a national born in 1995 in North Macedonia, married a Swiss citizen on 21 July 2017 and subsequently received a residence permit on 19 October 2017 under family reunification. The marriage was dissolved on 3 June 2021. The marital community lasted less than three years (19 October 2017 to 14 May 2020).

On 28 May 2020, the wife informed the Basel-Stadt Migration Office that the spouses had separated. The appellant subsequently claimed marital violence and submitted applications to the Basel-Stadt Migration Office and later to the Basel-Stadt Civil Court. The State Secretariat for Migration (SEM) refused, by decision of 29 September 2021, to consent to the extension of the residence permit and ordered the appellant’s removal from Switzerland. The appellant filed an appeal against this decision with the Federal Administrative Court, which was dismissed by judgment of 11 October 2023. The appellant then filed an appeal in public law matters with the Federal Supreme Court on 20 November 2023, seeking the annulment of the lower-instance judgment and the granting of a hardship permit. In the alternative, he requested that the matter be referred back to the lower instance for reassessment.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal. It found that the appellant plausibly claims to have been a victim of marital violence and that the appeal in public law matters is therefore admissible (Art. 83 lit. c no. 2 FSCA). The other requirements for a judgment on the merits were also met, so the Court proceeded to examine the appeal on the merits.

In substance, the Federal Supreme Court examined whether the appellant was entitled to an extension of his residence permit under Art. 50 para. 1 lit. b FNIA (post-divorce hardship case). Such entitlement requires that important personal reasons make a continued stay in Switzerland necessary. Important personal reasons include, in particular, being a victim of marital violence or a seriously endangered social reintegration in the country of origin (Art. 50 para. 2 FNIA).

The appellant claimed to have been a victim of physical and psychological marital violence. The Federal Supreme Court recalled that domestic violence encompasses systematic abuse aimed at exerting power and that not every single physical altercation or verbal insult suffices. The appellant was required to credibly substantiate the alleged violence. He submitted six undated photographs allegedly showing injuries caused by his (ex-)wife. However, the lower court deemed these pieces of evidence insufficient, as the photographs could not be clearly attributed to the appellant and the incidents described did not appear plausible. The Federal Supreme Court held that the lower court’s assessment of the evidence was not arbitrary and that the alleged violence had not been credibly…