Dismissal of appeal against refusal of subsequent spouse reunification after expiry of five-year deadline

Facts

The Thai national the complainant married Swiss citizen the complainant’s spouse on 12 February 2013. The complainant remained in Thailand with her daughter the daughter (born 1999/2000) from a previous relationship, over whom she had custody. The spouses lived separately for years but maintained their relationship through mutual visits and modern means of communication. On 27 August 2020, the complainant applied to the Zurich Cantonal Migration Office for an entry permit to remain with her spouse. The application was rejected by decision dated 11 November 2020. The subsequent appeal to the Zurich Cantonal Security Directorate was unsuccessful (decision dated 11 March 2021), as was the appeal to the Zurich Cantonal Administrative Court (judgment dated 15 December 2021).

With an appeal in public law matters dated 9 February 2022, the complainants sought the annulment of the administrative court judgment and an order to the Migration Office to grant the complainant entry and residence in Switzerland. The Administrative Court waived a statement of defence and requested dismissal of the appeal. The Appeals Division of the Security Directorate, the Migration Office and the State Secretariat for Migration (SEM) did not submit statements.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal. It found that an appeal in public law matters concerning permits is admissible only if federal law or international law grants a right (Art. 83 lit. c no. 2 FSCA). The complainants claimed a right of residence under Art. 42 para. 1 FNIA, which allowed for a substantive review. The other requirements for a judgment on the merits were also met, so the appeal was admissible.

The complainants alleged a violation of their right to a fair hearing (Art. 29 Cst.) and an insufficient justification of the lower-instance decision in connection with Art. 8 ECHR. The Federal Supreme Court held that the right to a fair hearing does not require the justification to address every submission explicitly. It is sufficient if the justification is drafted in such a way that the parties concerned can understand the implications of the decision and appeal it to a higher instance. The lower instance had explained why it refused the complainant’s reunification after the deadline, particularly in light of Art. 8 ECHR. The formal objections therefore proved unfounded.

In substance, the Federal Supreme Court examined whether the requirements for subsequent family reunification under Art. 47 para. 4 FNIA were met. According to Art. 42 para. 1 FNIA, foreign spouses of Swiss nationals are entitled to a residence permit if they live with them. However, the claim must be asserted within five years under Art. 47 para. 1 FNIA. In the present case, the deadline had already expired more than two years earlier, so the complainants had to rely on the existence of important family reasons within the meaning of Art. 47 para. 4 FNIA.

The Federal Supreme Court emphasised that subsequent family reunification should remain an exception and that a permit is granted only if important family reasons exist that do not…