Facts
The appellant, a Kosovar national born in 1982, filed an asylum application in 2003, which was rejected by the Federal Office for Refugees. He disappeared in April 2003, reappeared in June 2005, and was then deported on 22 June 2005.
On 5 February 2008, he married a Swiss national, after obtaining a visa. He obtained a residence permit, renewed until 4 February 2013, and then a settlement permit on 16 April 2013. The couple had no children.
The divorce was pronounced on 2 October 2018 by the Lausanne District Court, the spouses having concluded a marriage contract in 2012 adopting the separation of property regime.
During the marriage, the appellant maintained a parallel relationship with a Kosovar compatriot, [C.] , the mother of his two sons, [D.] (born in 2012 in Kosovo) and [E.] (born in 2017 in Switzerland). The compatriot arrived in Switzerland in 2017 and holds no residence permit, nor do the children. The appellant recognised his sons in March 2019 and explained that the first had been conceived during a fling without a sequel.
The appellant was convicted seven times between 2013 and 2017 (fines and a custodial sentence of 120 days), notably for inciting illegal residence, repeated employment of foreigners without authorisation, violations of the RTA and an offence against the FSCA.
On 18 February 2019, the Population Service of the Canton of Vaud (Cantonal Service) announced that it was considering revoking the settlement permit and suspended the residence application of the compatriot in view of marriage.
By decision of 5 August 2019, the Department of Economy, Innovation and Sport of the Canton of Vaud (Department) revoked the settlement permit and ordered deportation, on the ground that the appellant had concealed essential facts. The cantonal appeal was dismissed on 28 May 2020 by the Cantonal Court of the Canton of Vaud, Administrative and Public Law Division, without further investigative measures (hearing of the former spouse and her son refused), on the ground that the appellant had concealed for years his parallel relationship and his children in order to obtain a residence title through marriage.
The appellant lodged a public law appeal before the Federal Supreme Court, seeking annulment of the cantonal judgment, non-revocation of his settlement permit and, in the alternative, remittal of the case. Suspensive effect was granted on 3 July 2020. The respondent authorities request dismissal.
Considerations
On admissibility, the Federal Supreme Court holds that the appeal is open against the revocation of a settlement permit, which in principle confers an entitlement to its maintenance (art. 83 let. c no. 2 FSCA), against a final decision of a higher cantonal authority of last instance (art. 86 FSCA, Art. 90 FNIA). The appeal is therefore admissible.
On the facts, the appellant challenges the assessment of the evidence, in particular concerning his knowledge of the birth of his first son and the duration of his relationship with the mother of his children. The Federal Supreme Court recalls that the assessment of evidence is arbitrary (art. 97 para. 1 FSCA) only if it is manifestly unsustainable. It finds non-arbitrary the cantonal conclusion that the appellant had maintained since 2011 a solid and lasting parallel relationship, in view of the chronology (birth of the first son in Kosovo, arrival in Switzerland of the mother, birth of the second son in Switzerland, marriage contract concluded less than one month after the birth of the first son, recognition without a paternity test); the complaint is therefore dismissed.
On the merits, the revocation of the settlement permit is based on art. 63 para. 1 let. a FNIA in conjunction with art. 62 para. 1 let. a FNIA, which targets false statements and concealment of essential facts, presupposing an intention to deceive the authority. The foreign national must answer questions put to him truthfully, but the absence of a precise question on the existence of a child born of another union does not constitute sanctionable concealment. By contrast, concealment of a lasting parallel relationship, which creates a false appearance of monogamy, justifies revocation (ATF 142 II 265). The Federal…