The Federal Act on Foreign Nationals and Integration (FNAI) lists in Art. 63 para. 1 the various reasons allowing the revocation of a residence permit, specifying that this provision is also applicable to the revocation of an EU/EFTA residence permit, which case law interprets as a sentence exceeding one year of imprisonment - whether conditional or not - or when the individual seriously or repeatedly endangers public security and order in Switzerland or abroad, poses a threat to them, or represents a threat to the internal or external security of Switzerland (let. b).
The grounds referred to in Art. 63 para. 1 let. b FNAI are notably retained in cases of serious or repeated violation of legal provisions as well as decisions of authorities, and in cases of voluntary non-fulfillment of public or private law obligations (e.g., failure to pay taxes, accumulation of debts; cf. Art. 77a para. 2 let. a and b OASA). Isolated acts that do not alone justify revocation, but whose repetition indicates that the perpetrator is not willing to comply with the order in force, may also fall under this provision.
Furthermore, Art. 63 para. 1 let. a cum 62 para. 1 let. b, second hypothesis, FNAI provides that the residence permit may be revoked if the foreign national has been subjected to a penal measure provided for in Arts. 59 to 60 or 64 SCC. These provisions of the Criminal Code relate to institutional treatment in cases of severe mental disorder of the perpetrator (Art. 59 SCC) or addiction or other dependence of the perpetrator (Art. 60 SCC) and the internment of the perpetrator of a crime (Art. 64 SCC).
According to the Federal Supreme Court, it is not necessary for a guilty verdict to have been rendered by a Swiss criminal court; a conviction pronounced abroad can also justify revocation, especially when the verdict has been rendered in a country guaranteeing the procedural principles of a rule-of-law state.
However, the scope of the grounds for revocation of the residence permit developed above is restricted by Art. 63 para. 3 FNAI, which has stipulated since October 1, 2016, that any revocation of the residence permit based solely on offenses for which a criminal judge has already pronounced a sentence or measure but has refrained from pronouncing an expulsion is unlawful. This principle also applies in cases where a criminal judge has pronounced a criminal expulsion; in such cases, the competent migration authority cannot revoke the permit solely based on the criminal conviction that led to the pronouncement of the criminal expulsion.
In contrast, revocation is possible when there are other grounds for revocation (e.g., dependency on social assistance) than the conviction for which the criminal judge refrained from pronouncing a criminal expulsion. In such cases, the conviction may be taken into account as part of the overall examination of the revocation of the permit.
The proportionality of the revocation must still be examined, even if the conditions for revocation provided in Art. 63 para. 1 let. a cum 62 para. 1 let. b FNAI or 63 para. 1 let. b are met (Art. 96 FNAI). For this, the authorities consider, among other things, the seriousness of the offense committed, the degree of integration, the length of stay in Switzerland, and the harm that would be suffered with the family. The requirements regarding the seriousness of the offense must be all the stricter the longer the foreign national has lived in Switzerland. However, even if the foreign national was born and has spent their entire life in Switzerland, it is not excluded that the permit may be revoked if they have committed violent offenses, sexual offenses, drug-related offenses, or are repeat offenders.
If you wish to obtain further information or need our support regarding foreign law, do not hesitate to contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) so that we can assist you with your procedures.
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