Author
The differences between the statuses are relevant for the family reunification procedure. The Swiss Refugee Council provides a table summarising the relevant rules and legal bases according to the status on its website.[1] Unaccompanied minors in Switzerland, regardless of their protection status, are not eligible to family reunification with their parents. Same sex couples have the same rights as heterosexual couples regarding family reunification. In practice, however, family reunification will potentially be more complicated as in most countries of origin, the registration/marriage of same sex couples is not possible or the lacking possibility of living the relationship may even be a reason for leaving the country of origin.
Refugees with asylum
Spouses or registered partners of refugees and their minor children are entitled to family reunification. They will also be recognised as refugees and granted asylum provided there are no special circumstances that preclude this (for example if the family member has a nationality allowing for the family to reside in another country or has been granted refugee status in a safe third country).[2]
If one of those persons is still abroad, their entry must be authorised on request, if the person in Switzerland and the person abroad were separated during the flight.[3] If the family had not been separated during the flight, for example because the family / marriage did not exist at that time, they are not entitled to family reunification under the Asylum Act and can only request family reunification under Article 44 FNIA, with more restrictive conditions and no right to it. However, if the spouse and children are already in Switzerland, this rule does not apply and they can be included in the asylum of the family member.[4]
In case of family asylum, there are no requirements regarding income or health insurance.
Practical problems frequently arise in case of lack of necessary documentation. Also, in some cases the SEM requires the conduct of DNA-tests to prove parenthood. The high costs of such tests as well as the travel costs can be covered by SEM on demand, which however has discretion in the decision whether or not to approve such demand. The refusal can be appealed.[5] This represents a clear obstacle to family reunification. IOM can provide logistical support for the organisation of the flight.[6]
In 2022, 1,656 recognised refugees applied for family reunification for family members residing abroad (compared to 1,797 in 2021). During the same year, the SEM authorised entry as a consequence of refugee family reunification cases for 1,121 persons (compared to 1,060 in 2021).[7]
Temporary admission
According to the law, three years after having received temporary admission, the person can apply to be reunited with their spouse and unmarried children under the age of 18. There is no requirement that the family ties already existed in the country of origin. The requirements are that they all live in the same household as soon as the person arrives in Switzerland, the family has suitable housing (a big enough apartment, already at the time of the application), and the family does not depend on social assistance (income requirement). The spouse has to speak the national language at the place of residence or be registered for language support services.[8] The application must be filed with the competent cantonal migration authority, which passes it on to the SEM. Certain deadlines apply to the application.[9] The 5 (or 1 for children 12 and over) year time limit to apply for family reunification starts at the end of the three-year waiting period. If the family / marriage was established after the waiting period of three years, the time limits start at the time the family / marriage was founded.
In November 2022, the Federal Administrative Court decided in a leading judgment,[10] that for persons with a temporary admission, the statutory waiting period of three years is no longer strictly and automatically applicable. Applications for family reunification must already be examined after one and a half years if further waiting is disproportionate in individual cases. The judgment has immediate effect. The Federal Administrative Court adapted its case law to a ruling of the ECtHR.[11] According to the ECtHR ruling, if the waiting period exceeds two years, the national authorities must assess each individual case to determine whether a further delay in family reunification violates the right to respect for family life. In doing so, they must take into account in particular the intensity of the family relationship, the degree of integration already achieved in the host country, the existence of insurmountable obstacles to the family’s life in the country of origin and the best interests of the child.
The ECtHR has concluded in a 2023 ruling that the criteria for family reunification for temporarily admitted refugees in Switzerland are too strict. The court found that Switzerland had violated respect for the right to family life in three cases. The Swiss authorities had rejected the applications for family reunification because the refugees were dependent on social welfare.[12]
The ECtHR has now stated that the individual circumstances of refugees must be given greater consideration. For example, the Swiss authorities may not adhere absolutely to the criterion of independence from social welfare if the person concerned has made demonstrable efforts to become financially independent. According to the ECtHR ruling, consideration must also be given to whether a person is too ill to work. If too little consideration is given to these individual circumstances when making a decision, this could lead to the permanent separation of families. This violates respect for the right to family life.
SEM confirmed already the implementation of this ruling.
In 2022, 380 temporarily admitted persons applied for family reunification (compared to 355 in 2021). The approved cases by the SEM during the same year concerned 120 persons (compared to 142 in 2021).[13]
Procedural aspects
The procedural aspects however are the same for all beneficiaries of protection:
- The application for family reunification must be submitted within five years, in case of children over 12 years the time limit is twelve months (in case of important family-related reasons, especially the best interest of the child, a later family reunification is possible).
- The application is free of charge.
- There is no specific time limit imposed upon the administration to decide on the application. However, applicants remain protected by general procedural guarantees: if the procedure becomes excessively lengthy without any procedural steps taken by the authorities, they may appeal for denial of justice.[14]
- In case of a negative decision, they may file an appeal before the Federal Administrative Court within 30 days of notification.[15] They are entitled to legal aid for this appeal.[16]
[1] Available in French at: https://bit.ly/37X8wdt and in German at: https://bit.ly/3pxqyJ3.
[2] Federal Administrative Court, ATAF 2019 VI/3 para 5.5–5.7. The same is not true for subsidiary protection, see Decision D-2976/2018, 31 January 2020, para 5.3.2.
[3] Article 51 AsylA.
[4] Federal Administrative Court, ATAF 2017 VI/4, para 4.2–4.4, especially 4.4.1.
[5] The Human Rights Law Clinic of the University of Bern provides a template for appealing those decisions, available at: https://bit.ly/3wLvOyp.
[6] See website in French: https://bit.ly/3tdAIUa.
[7] Information provided by the SEM, 1 May 2023.
[8] Article 85(7) FNIA, it is extremely challenging to fulfil the additional requirements and, as the process until the family arrives in Switzerland may take very long, it seems not necessary that the person in Switzerland already lives in the family apartment, as money is mostly short and living costs are very high.
[9] Article 74(2)-(3) Ordinance on Admission, Period of Stay and Employment.
[10] Federal Administrative Court, Decision F-2739/2022, 22 November 2022 (in French): https://bit.ly/3PYPvf1; press release available in English (German, French and Italian) https://bit.ly/3WMIkZr.
[11] ECtHR, Application no. 6697/18, M.A. v Denmark, 9 July 2021, available at: http://bit.ly/3HAjLKs.
[12] B.F. and Others v. Switzerland, no. 13258/18, 4 July 2023.
[13] Information provided by the SEM, 1 May 2023.
[14] Article 29 of the Federal Constitution; Federal Administrative Court, Decision E-1716/2021, 1 July 2021;E-2646/2021, 3 November 2020; D-1532/2020, 11 May 2020.
[15] Article 50 of the Federal Act on Administrative Procedures.
[16] Article 65 of the Federal Act on Administrative Procedures.