Facts
The appellant (born 1998), an Indian national, entered Switzerland on 9 October 2016 to study at a hotel management school. On 22 September 2017 he married [B.] , a British national with a residence right in Switzerland, whereupon he was granted a residence permit EU/EFTA for the purpose of 'staying with the spouse'. After changing canton to the Canton of Zug (1 April 2018), he received a residence permit EU/EFTA with the same purpose.
On 31 March 2020 the wife informed the Migration Office that she wished to divorce. By decision of 24 July 2020, the Office for Migration of the Canton of Zug revoked the residence permit EU/EFTA and ordered the appellant's departure. The Government Council of the Canton of Zug dismissed the appeal on 15 December 2020. By judgment of 6 October 2021, the Administrative Court of the Canton of Zug upheld the appeal only insofar as the departure deadline was set at 60 days from the entry into force of the decision; for the remainder, it dismissed the appeal.
By appeal in public law matters of 18 November 2021, the appellant requested before the Federal Supreme Court the annulment of the revocation and the removal order, the extension of the residence permit, or alternatively remand, and subsidiarily a departure deadline of three months. The disputed questions concern in particular a derived right of residence under the Agreement on the Free Movement of Persons (AFMP), an entitlement under Art. 50 FNIA, the complaint of violation of the right to be heard, as well as Art. 8 ECHR and Art. 13 para. 1 Cst.
Considerations
The appeal was admitted, as the appellant may reasonably invoke a derived right of residence under the AFMP and Art. 50 FNIA (Art. 83 let. c no. 2 FSCA). The requests concerning the annulment of the Government Council's decision and of the Migration Office's decision were not admitted (devolutive effect), nor was the request to refrain from removal (Art. 83 let. c no. 4 FSCA), nor the complaint against the departure deadline, as this constitutes a modality of enforcing removal and no independent constitutional complaints were raised.
The complaint of violation of the right to inspect files or of the right to be heard (Art. 29 para. 2 Cst.) was rejected. The disputed e-mail from the wife of 19 June 2020 was sent after the file inspection of 15 June 2020; moreover, the Government Council had already relied on it, which is why the appellant could have requested inspection. The e-mail merely confirms the already known intention to divorce, and the appellant was able to comment in the prior proceedings on the continued existence of the marital intent.
Regarding the right of residence under the AFMP (Art. 3 para. 1 Annex I AFMP, Art. 7 let. d AFMP): The right of spouses of EU nationals exists as long as the marriage formally continues, but is subject to the reservation of abuse of rights. If the intention to remain married is absent and the formal marital bond serves only to circumvent immigration admission requirements, the entitlement lapses. The permit may be revoked or not extended under Art. 23 para. 1 VFP in conjunction with Art. 62 para. 1 let. d FNIA. The existence of marital intent is a question of fact, which the Federal Supreme Court reviews only for obvious inaccuracy (Art. 97 para. 1 FSCA). The appellant, who is obliged to cooperate under Art. 90 FNIA, could not identify any indications of a resumption of the marital community. That no divorce proceedings have yet been initiated is not decisive, especially since a divorce action against the will of one spouse is only likely to succeed after two years of separation (Art. 114 CC). The lower court therefore did not violate federal law in qualifying the invocation of the formally continuing marriage as an abuse of rights.
Regarding the entitlement under Art. 50 para. 1 let. a FNIA: The entitlement requires that the marital community has lasted at least three years. Under Art. 50 FNIA, the case of an EU/EFTA former spouse holding only a residence permit is also covered (BGE 144 II 1 consid. 4.7). Decisive is the duration of the outwardly perceptible marital residence community or of the mutually lived marital intent (BGE 138 II 229 consid. 2; 137 II 345 consid. 3.1.2). The time limit is absolute. The lower court established binding findings that the marital intent had ceased at the latest in April 2020, and the marriage therefore lasted only about…