Asylum seekers often submit their applications under a false identity in the hope of reducing the risk of a denial of their asylum request and deportation to their country of origin. If their asylum application is rejected, under certain conditions, these individuals may benefit from temporary admission because their deportation is illegal, unenforceable, or impossible due to Switzerland's international obligations. Temporary admission can end if a change in circumstances allows for the foreigner’s deportation or if the foreigner obtains another residence permit. To obtain another residence permit, the foreigner must prove their identity with a valid identity document according to Art. 31 para. 2 OASA. In this context, rejected asylum seekers are required to reveal their true identity. Below are the possible consequences of revealing true information to the authorities.
Revocation Based on Re-evaluation of the Situation
According to Art. 84 LEI, the State Secretariat for Migration (SEM) periodically checks if the foreigner meets the conditions for temporary admission (para. 1). If this is no longer the case, the SEM will terminate the temporary admission and order the execution of deportation (para. 2). If the reasons outlined in Art. 83, para. 7 are met and a cantonal authority, fedpol, or the SRC requests it, the SEM can lift the temporary admission granted under Art. 83, paras. 2 and 4, and order deportation (para. 3).
Under Art. 84 LEI, paras. 1 and 2, temporary admission can be revoked if the foreigner no longer meets the conditions. Specifically, deportation becomes possible if the conditions for temporary admission (Art. 83 para. 2 to 4 LEI) are no longer met or were never met.
Thus, significant changes in the foreigner's personal situation or in their country of origin can justify the revocation of temporary admission. Temporary admission is granted due to a combination of factors, including the applicant's name and age (Posse-Ousmane Samah, in: Nguyen Minh Son/Amarelle Cesla (eds.), Annotated Migration Law Code - Volume II, Law on Foreigners (LEtr), Bern 2017, Art. 84). Therefore, revealing the true name and date of birth will prompt the administration to re-evaluate the situation with regard to the conditions of temporary admission.
Revocation for False Declarations
A residence permit (including a residence permit F for temporary admission) can be revoked under Art. 62 para. 1 let. a LEI, which states: “The competent authority may revoke an authorization, except for the settlement permit, or any other decision based on this law if the foreigner or their legal representative has made false statements or concealed essential facts during the authorization procedure.”
In practice, this legal provision is frequently used to deny requests for changing a residence permit F (temporary admission) to a residence permit B, based on Art. 84 para. 5 LEI. In this procedure, foreigners are required to prove their identity with a valid identity document in accordance with Art. 31 para. 2 OASA. If the authority discovers that it has been deceived, it will refuse the change of permit and revoke the temporary admission.
The application of Art. 62 para. 1 let. a LEI is also potentially possible outside of a procedure for changing a residence permit F to a residence permit B. Thus, it is conceivable that the administration could lift or revoke the temporary admission of a foreigner based on this article if the foreigner reveals their true identity during their temporary admission.
According to case law, for the application of this provision, the intent to deceive the administration does not necessarily have to concern the facts decisive for obtaining the residence permit, but it is sufficient if the right to obtain the issued permit is called into question if the true facts are revealed (BGE 142 II 265 cons. 3.1 in: Pra 106 Nr. 10, BGer 2C_562/2019 of November 12, 2019 E. 5.2). In other rulings, the Federal Court has confirmed the revocation of residence permits in situations where the false information was not causally linked to the obtaining of the respective residence permits (TF 2C_47/2010 of June 16, 2010 cons. 3.1, 2A.485/2003 of February 20, 2004 cons. 2.1).
However, the revocation of a residence permit due to false declarations to the authority (Art. 62 para. 1 let. a LEI) is only justified if this measure is proportionate. Thus, the public interest in adhering to the obligation to cooperate in a residence permit procedure must be balanced with the private interest in maintaining the residence permit despite false declarations at its origin. The decisive factors are the gravity of the fault and the degree of fact concealment, the foreigner’s personal situation, their level of integration, the duration of their presence in Switzerland, and the constraints they face if the residence permit is revoked.
In a ruling by the Cantonal Court of St. Gallen, the revocation of temporary admission for an asylum seeker who used a false identity for years was confirmed. The revocation was upheld despite the fact that the information about their identity (name, surname, date of birth) was not relevant to the asylum procedure they had initiated.
Possible Criminal Consequences
It should also be noted that providing false information may also have criminal consequences due to Art. 118 LEI, which penalizes fraudulent behavior towards the authorities, and due to the general obligation of cooperation of foreigners outlined in Art. 90 LEI.
Conclusion
Therefore, the procedure of revealing hidden information to the authorities must be carefully studied and prepared in advance. It presents a risk of revoking residence permits obtained based on or through false declarations.
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