Facts
The Jamaican national (born 1982) is married to a Polish national and has three children with her. The family entered Switzerland together on 9 May 2016, where the wife and children have residence rights. In May 2016 the wife filed a family reunification application, which she withdrew in October 2017 due to separation. The Basel-Stadt Civil Court confirmed the separation on 17 September 2018.
On 27 March 2018 the appellant applied for a residence permit in the canton of Basel-Stadt. The Migration Office rejected the application on 28 October 2019 and set a departure deadline of 24 November 2019. The appellant filed an appeal against this decision with the Justice and Security Department and applied provisionally for a finding that he may take up gainful employment during the appeal proceedings, or alternatively for permission to do so. The Department rejected the application by interlocutory decision of 13 November 2019. The Basel-Stadt Court of Appeal, sitting as the administrative court, upheld this decision by judgment of 27 April 2020 (VD.2019.231) and granted legal aid.
The appellant filed a public law appeal with the Federal Supreme Court on 9 June 2020. He requested that the judgment be set aside and that his right to gainful employment during the appeal proceedings be established, or alternatively that a permit be granted, and subsidiarily that the matter be remitted. He also requested legal aid and legal representation. The Court of Appeal and the Justice and Security Department requested that the appeal be dismissed.
Before the Federal Supreme Court, the only issue in dispute was whether the lower instances were right to prohibit the appellant from gainful employment during the appeal proceedings. Residence in Switzerland during the proceedings was not prohibited.
Considerations
The Federal Supreme Court admitted the public law appeal against the interlocutory decision on provisional measures (Art. 82 let. a, Art. 83 let. c no. 2, Art. 86 para. 1 let. d and para. 2 FSCA). The appellant invoked, in a tenable manner, a right of residence based, among other things, on Art. 8 Cst.. The appeal against the interlocutory decision is admissible because there is a risk of irreparable harm within the meaning of Art. 93 para. 1 let. a FSCA, which could not be remedied even by a favourable final decision, namely the prevention of professional integration. Although the appeal had in the meantime been decided and the provisional measure had become moot, the Federal Supreme Court nevertheless entered into the matter.
As this concerns a provisional measure, only the violation of constitutional rights may be raised (Art. 98 FSCA). These include rights arising from international human rights conventions; international law is reviewed only for arbitrariness. The complaints must be clearly and specifically substantiated (Art. 106 para. 2 FSCA). The subject matter of the dispute was limited to the prohibition on gainful employment, since residence during the proceedings was not prohibited.
The lower instance based the prohibition essentially on an analogous application of Art. 17 para. 1 FNIA, under which a foreigner who has entered lawfully only temporarily or is present illegally must await the decision abroad. The Federal Supreme Court considers this arbitrary: the appellant did not enter for a temporary stay, no illegal residence is alleged against him, and he was presumably entitled to residence and gainful employment under Art. 3 para. 5 Annex I AFMP. His residence without a permit, now approximately four and a half years, is mainly attributable to the lengthy duration of the proceedings and therefore to the cantonal authorities. Within the scope of the AFMP, the residence permit has only a declaratory significance. The analogous application of the provisions on extension of permits (Art. 59 para. 2 ASEO) appears appropriate given the особенности of the case, so the appellant is entitled…