Facts
The appellant A. is a Macedonian national who entered Switzerland in 1991 through family reunification and has held a settlement permit since June 2001. Since 31 October 2012, his wife and his three children have lived in V., France. The appellant works in Basel during the week and stays there in an apartment; since 1 September 2016 he has rented a one-room apartment in Basel.
By decision of 4 May 2016, the Migration Office of the Canton of Basel-Stadt determined that the settlement permit had expired, or alternatively revoked it, removed the appellant from Switzerland and set a departure deadline. The Department of Justice and Public Security of the Canton of Basel-Stadt dismissed the appeal (Rekurs) on 18 May 2017. The Appellate Court of the Canton of Basel-Stadt partially upheld the appeal (Rekurs) by judgment of 9 January 2018, granted legal aid and dismissed the appeal in all other respects.
By public law appeal (Beschwerde in öffentlich-rechtlichen Angelegenheiten) of 9 February 2018, the appellant requested the annulment of the Appellate Court's judgment and the continuation of his settlement permit. The Federal Supreme Court granted suspensive effect to the appeal and upheld it.
The question in dispute is whether the settlement permit expired due to the relocation of the centre of his life to France while maintaining gainful employment and accommodation in Switzerland.
Considerations
The appellant complained of an arbitrary finding regarding the centre of his life and of unequal treatment compared with well-paid expatriates. Furthermore, the cantonal authorities should have informed him of the four-month maintenance option under Art. 61 para. 2 sentence 2 FNIA.
Pursuant to Art. 61 para. 1 let. a FNIA, the settlement permit expires upon deregistration abroad, and under Art. 61 para. 2 sentence 1 FNIA it expires when a person leaves Switzerland without deregistration after six months abroad. The legislator thus relies on two formal criteria and dispenses with the interpretively demanding concept of the centre of life or residence. Maintaining a permit presupposes a minimum physical presence in Switzerland.
According to published practice (BGE 120 Ib 369), the six-month stay abroad is not interrupted by temporary tourist, visit or business stays, which Art. 79 para. 1 ASEO clarifies. A person who moves their residence abroad and returns to Switzerland only for short periods does not fulfil the minimum physical presence requirement, even if they still have an apartment in Switzerland. The centre of life alone is, however, relevant only in conjunction with the requirement of a lasting departure…