Non-extension of the residence permit due to false statements regarding gainful employment and proportionality in view of long-term residence and indebtedness

Facts

The appellant is a Serbian national, born in 1973. He entered Switzerland in 1992 under family reunification with his Macedonian wife. He was most recently granted a residence permit extended until 6 January 2017. The wife and the three children hold settlement permits.

In 1996 the Foreigners' Office warned the appellant due to debts of approximately CHF 20,000.--. In 1999 his settlement permit was refused because of the debts. The residence permit was extended in 2000, 2003, 2005, 2006, 2013 and 2014, each time on the condition that he meet his financial obligations and behave without complaint. By decision of 17 February 2015 he was warned again, with the threat of revocation or non-extension.

The appellant was convicted of violations of the RTA, in particular for driving a motor vehicle despite a revoked driving licence or without a driving licence. By penal order of 23 May 2017 of the Public Prosecutor's Office of St. Gallen he was sentenced to a custodial sentence of 60 days for deceiving the authorities.

By decision of 4 October 2017 the Migration Office of the Canton of St. Gallen no longer extended the residence permit, because the appellant had made false statements regarding his gainful employment in the permit proceedings, and set him a departure period of 60 days. The Department of Security and Justice dismissed the appeal (Rekurs) on 9 May 2018, and the Administrative Court of the Canton of St. Gallen dismissed the complaint by decision of 20 January 2019 (B 2018/130).

By public law appeal of 25 February 2019 the appellant requests the annulment of the decision of the lower court and the extension of the residence permit, alternatively remittal for supplementation of the facts. The lower court and the Department request dismissal. The President of the Second Public Law Division, by decision of 27 February 2019, did not entertain the request for suspensive effect.

The subject matter of the dispute is the non-extension of the residence permit. The grounds for revocation of false statements or concealment of material facts must be examined, as well as the proportionality of the measure terminating residence, in particular under Art. 8 ECHR.

Considerations

The public law appeal is admissible. The appellant asserts in a tenable manner a claim to extension of his residence permit based on Art. 43 FNIA, since he lives in an intact marriage with a Macedonian woman entitled to settle. In view of his residence of over 27 years, he is so well rooted in Switzerland that the measure requires justification under Art. 8 ECHR. The complaints are to be examined under Arts. 95 and 96 FSCA; the Federal Supreme Court bases its decision on the facts established by the lower court, unless they are manifestly incorrect (arbitrary) or based on a violation of law.

The claim to extension lapses if a ground for revocation under Art. 62 FNIA exists (Art. 51 para. 2 lit. b FNIA former version). The lower court based the non-extension on Art. 62 para. 1 lit. a FNIA, under which a permit may be revoked if false statements were made or material facts concealed in the permit proceedings. Intent to deceive is required; it is sufficient that the claim would have been seriously in question had truthful information been provided. The lower court correctly found that, in view of the indebtedness and the lack of evidence of efforts to obtain a full-time position, an extension would have been seriously in question had the facts been disclosed.

The appellant does not substantively engage with this ground for revocation. His point that the failure to communicate the termination was not intentional is appellatory and disregards the final penal order for deceiving the authorities. The complaint that Art. 62 para. 1 lit. a FNIA is inapplicable due to the long period of residence fails, since Art. 63 para. 2 FNIA concerns only settlement permits. The complaints regarding the absence of wilfulness in the indebtedness and the absence of a serious violation of public security fail, since the lower court did not rely on Art. 62 para. 1 lit. c FNIA but took these elements into account only in the assessment of proportionality.

The non-extension must be proportionate (Art. 5 para. 2 Cst., Art. 8 para. 2 ECHR, Art. 96 FNIA). The lower court was entitled, without arbitrariness, to rely on the report of the Psychiatric Clinic Wil of 25 April 2017. The marriage is not intact,…