Swiss immigration law differentiates between nationals from EU/EFTA member states and nationals from third countries. The admission of third-country nationals is governed by Articles 18 to 29 of the Federal Act on Foreign Nationals and Integration (LEI), which outline various scenarios. Admission is subject to the discretion of the competent authorities, who are not obligated to grant a residence permit even if legal conditions are met. Generally, cantonal authorities have the freedom to assess admission or refusal of a foreign national within the limits of the law. However, the legislator has provided for exceptions to the admission conditions to allow the regularization of foreign nationals in specific cases.
Here is an overview of the various scenarios outlined by federal law on foreigners and integration:
Family Reunification: Article 30, paragraph 1, letter a LEI allows for exceptions to the admission conditions for family reunification, enabling a family member who does not have the right to work to be admitted for employment purposes.
Exceptional Individual Cases: Article 30, paragraph 1, letter b LEI provides for exceptions in cases of extreme hardship or significant public interest. This is the most important exception in practice and addresses cases of rigor. It applies to foreigners who do not fall under asylum law, i.e., those who have never had a residence permit or those whose permit has not been renewed. Cases of rigor include situations where a negative decision would result in severe personal consequences for the foreign national. These cases are evaluated based on the overall circumstances, considering criteria such as integration, adherence to Swiss law, family situation (e.g., children's education), financial status, participation in economic life, length of stay in Switzerland, health, and the potential for reintegration into the home country. The list of criteria is not exhaustive, and additional criteria may be considered based on practice and jurisprudence.
Placement of Children: Article 30, paragraph 1, letter c LEI provides for exceptions to facilitate the residence of children placed in Switzerland when adoption is not planned. Jurisprudence considers cases where the child is orphaned, abandoned, or when parents are completely unable to care for the child.
Protection Against Exploitation: Article 30, paragraph 1, letter d LEI allows exceptions to protect individuals particularly at risk of being exploited in their professional activities, including protection against professional and sexual exploitation.
Protection Against Human Trafficking: Article 30, paragraph 1, letter e LEI is intended to protect victims of human trafficking and those involved in witness protection programs in Switzerland, abroad, or by international criminal courts.
Development and Aid Projects: Article 30, paragraph 1, letter f LEI allows for exceptions for stays related to aid and development projects, such as programs for development assistance, peace promotion, human rights protection, or humanitarian policy that enable foreigners to acquire training or specialization in Switzerland relevant to their home country’s development.
International Exchanges: Article 30, paragraph 1, letter g LEI facilitates exceptions for international exchanges in economic, scientific, and cultural fields, as well as vocational and continuing education. Articles 38 to 45 OASA detail this provision, including rules for training, internships, and international exchanges.
Intra-Company Transfers: Article 46 OASA, specifying Article 30, paragraph 1, letter h LEI, provides for residence permits to facilitate the transfer of senior executives and essential specialists within international companies, including senior managers and highly qualified staff.
Au Pair and Continuing Education: Article 30, paragraph 1, letter i LEI allows exceptions for au pairs placed by an organization, and letter j LEI covers exceptions for persons recognized for continuing education stays in Switzerland.
Readmission of Foreigners: Article 30, paragraph 1, letter k LEI, detailed by Article 49 OASA, provides conditions for the readmission of foreigners who previously held a residence or settlement permit. Conditions include having had a B or C permit, a previous stay of at least five years, voluntary departure within the last two years, and sufficient financial means.
Asylum Seekers and Protected Persons: Article 30, paragraph 1, letter l LEI pertains to work market access for asylum seekers, provisionally admitted foreigners, and persons protected under Article 75 LAsi. Conditions for their admission are detailed in Articles 52 to 53a OASA.
The conditions for admission to Switzerland can be strict and are often left to the discretion of cantonal authorities. Refusals can lead to delicate situations, leaving foreigners in an irregular status. The derogatory rules provide opportunities for foreigners to regularize their status in Switzerland and integrate into the job market and social life of the country.
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