Facts
The Turkish national (appellant, born 1996) entered Switzerland on 21 November 2014 and married on the same day a fellow Turkish national (born 1985) who was settled in the canton of Zurich. On 6 February 2015 he was granted a residence permit to remain with his wife. The spouses filed a joint divorce application on 3 January 2018; the marriage was dissolved on 8 February 2018.
On 24 September 2018 the Migration Office of the canton of Zurich revoked the residence permit and set a departure deadline until 24 December 2018. The Security Directorate of the canton of Zurich dismissed the appeal on 22 February 2019, as did the Administrative Court of the canton of Zurich, 2nd Division, on 29 May 2019 (VB.2019.00207).
By public law appeal of 26 August 2019, the appellant requested that the lower court's judgment be set aside and the residence permit be extended, or alternatively that the case be remitted for a new assessment. Suspensive effect was granted by presidential order of 28 August 2019. The Administrative Court requested dismissal of the appeal; the State Secretariat for Migration and the Security and Justice Department waived a response.
Subject matter of the dispute: Revocation of the appellant's residence permit, which he had obtained on the basis of his marriage to his ex-wife (Art. 43 para. 1 let. a FNIA). The only question to be decided is whether the lower court, without arbitrariness and in conformity with federal law, assumed that the marital community did not reach the statutory minimum duration of three years (Art. 50 para. 1 let. a FNIA).
The lower court left open whether a sham marriage existed from the outset and assumed, on the basis of indications, that the actual marital community was abandoned before the three-year period was reached. The indications included, among others: an age difference of around eleven years, the appellant's stay abroad before the marriage, the ex-wife's suspicion during a police interview on 8 November 2016, apartment inspections in which the appellant was not found, an extramarital relationship of the ex-wife with a Turkish compatriot ([C.] ) since around autumn 2017, the appellant not being named during an interview, and the statement of the ex-wife's brother that she had already separated five months before an apartment inspection on 26 January 2018.
Considerations
The public law appeal is admissible, as for permits under Art. 50 para. 1 let. a FNIA a reasonably asserted right to a permit is sufficient (Art. 83 let. c no. 2 FSCA; BGE 139 I 330). Whether the right actually exists is the subject of the substantive examination. The Federal Supreme Court examines federal law ex officio (Art. 106 para. 1 FSCA), and constitutional individual rights only subject to a qualified duty of complaint and substantiation (Art. 106 para. 2 FSCA). Findings of fact may only be corrected where they are manifestly incorrect, i.e. arbitrary (Art. 9 Cst.; Art. 105 para. 2 FSCA).
The question of whether the marital community lasted three years is a question of fact, reviewed only for arbitrariness. By contrast, it is a question of free review whether the indications point to an abuse of rights or to the abandonment of the will to marry. The will to a shared life is decisive; a parallel relationship counts as a significant indication of the absence of a genuine will to marry, whereby the quality of the relationship is determinative. The burden of proof for the absence of the will to marry lies in principle with the migration authorities, but the duty to cooperate (Art. 90 FNIA) qualifies this principle; the spouse disputing the matter must, where there are significant indications, bring forward on his own initiative circumstances that render the duration of the community credible.
The appellant did not dispute the indications, or did not do so with sufficient substantiation. He limited himself to relativising the lower court's arguments and shifting the burden of proof onto the authorities. He thus did not meet the complaint principle, and the findings of fact are binding on…