Facts

Parties and procedural history:

The appellant, an Afghan national, entered Switzerland with his family in 2007 and was granted a hardship permit in 2012. In 2017, he was convicted of attempted serious bodily harm, assault and an offence against the Weapons Act, sentenced to 19 months’ imprisonment. In 2019, the Regional Court of Innsbruck (Austria) convicted him of multiple human smuggling offences, sentencing him to 21 months’ imprisonment. The Office for Migration and Civil Law of the Canton of Graubünden then revoked the appellant’s residence permit and ordered his removal from Switzerland. In June 2022, the cantonal Department of Justice, Security and Health upheld this decision but ordered that an application for provisional admission be submitted to the State Secretariat for Migration (SEM) on the grounds that removal to Afghanistan would be unreasonable. The Administrative Court of the Canton of Graubünden upheld the removal order in a judgment dated 9 May 2023. The appellant then filed an appeal with the Federal Supreme Court, seeking to have the removal order set aside or his residence permit extended.

Details of the facts:

  • The appellant has been lawfully resident in Switzerland for more than 15 years and has integrated economically and linguistically. His wife and their children also have secure residence rights in Switzerland.
  • The appellant’s criminal convictions (2017 in Switzerland and 2019 in Austria) were recognised as grounds for revocation under Art. 62 para. 1 lit. b FNIA (conviction to a long-term custodial sentence).
  • In 2022, the cantonal Department of Justice, Security and Health found that the appellant’s removal to Afghanistan would be unreasonable and ordered that an application for provisional admission be submitted to the SEM. The SEM, however, recommended that the removal order be considered reasonable, as there were insufficient grounds for assuming that return to Afghanistan would be unreasonable.
  • The Administrative Court of the Canton of Graubünden did not consider the risks associated with return to Afghanistan in its decision and upheld the removal order.

Considerations

Admissibility of the appeal:

The Federal Supreme Court first examined the admissibility of the appeal. Since the appellant relies on the right to respect for private and family life (Art. 8 para. 1 ECHR) and has been lawfully resident in Switzerland for more than ten years, the appeal in public law matters is admissible (Art. 82 lit. a, Art. 83 lit. c no. 2, Art. 86 para. 1 lit. d, Art. 89 para. 1, Art. 90, Art. 100 para. 1 FSCA). The appeal also meets the qualified requirement for grounds and substantiation (Art. 106 para. 2 FSCA).

Proportionality assessment of the removal order:

The removal order must be proportionate (Art. 96 para. 1 FNIA, Art. 8 para. 2 ECHR). In assessing proportionality, the individual interests of the appellant in remaining in Switzerland must be weighed against the public interest in his removal. In particular, the following factors must be taken into account:

  • Nature and severity of the offences committed (multiple human smuggling, sentence of 21 months’ imprisonment),
  • Length of residence in Switzerland (15 years),
  • Appellant’s conduct since the offences (no new criminal offences since March 2019, but lack of a positive legal prognosis due to prior convictions),
  • Social, cultural and…