Discrimination Of Swiss Nationals In Family Reunification: When Will There Be Equal Treatment?

By means of family reunification, persons residing in Switzerland with a legal residence permit can bring their family members living abroad to Switzerland. While EU/EFTTA nationals (with a valid Swiss residence permit) benefit from the very generous provisions in the Agreement on the Free Movement of Persons (AFMP). In this regard, Swiss nationals are generally subject to stricter requirements. This unequal treatment in family reunification, which has existed for decades, should now be abolished and equal conditions created for these two groups of people. The corresponding amendment to the Swiss law is currently pending in parliament and it is still uncertain whether it will come into force.

Below you find an overview on the current legal situation and the planned changes.

Conditions for Family Reunification for EU/EFTA-Nationals

Eligible Family Members for Reunification

The AFMP regulates the requirements for family reunification for EU/EFTA nationals who legally reside in Switzerland. The group of family members who may be brought to Switzerland (family members entitled to reunification) is (very) broadly defined and includes the following persons:

• The spouses and relatives in the descending line (e.g. (adopted) stepchildren, grandchildren) who are under the age of 21 or who are receiving maintenance (any form of support counts as maintenance, which must already be available at the time the application is submitted);
• The relatives in the ascending line of the EU/EFTA national and its spouse, e.g. the parents (in law), (great-)grandparents, etc., if he/she provides evidence of the relative's need for support and the actual provision of support benefits at the time of application.

This does not apply to EU/EFTA students in Switzerland, as they can only be joined by their spouse and dependent children; and

• Other family members and close relatives, such as cohabiting partners, uncles and aunts, siblings can also join you under the AFMP. However, the prerequisite here is proof of the relative's need of support or that the EU/EFTA person joining them lived together before entering Switzerland.

The aforementioned family members can join the EU/EFTA national regardless of their nationality or current residence permit. This means that it does not matter in which country the family member is located or whether the person holds a valid EU/EFTA residence permit. The circle of family members entitled to reunification is therefore very broad.

Modalities of Immigration and the Granting of Permits

There is also no time limit for reunification. The EU/EFTA national in Switzerland can therefore only apply for family reunification after a 10-year (or even longer) stay in Switzerland. Finally, there is no requirement for the family to live together in Switzerland. The only obligation of the EU/EFTA national is to provide their family members who have joined them with suitable accommodation. The appropriateness of the accommodation is based on the usual local conditions. In practice, the rule of thumb is "number of rooms = number of people minus one", although this is not strictly applied and one room for three children may be sufficient.

If the above-mentioned requirements of the AFMP are met, the cantonal migration authorities must approve the application of an EU/EFTA national for family reunification, unless they find an abuse of rights (e.g. a marriage of convenience). If the application is approved, the family members can enter Switzerland and start working here immediately. They will also receive the same residence permit as the EU/EFTA national reunifying them. However, their residence permit is linked to the EU/EFTA national in Switzerland. If he/she loses its right of residence in Switzerland or if the spouses separate, this normally means that the person joining them also loses their residence permit.

Thanks to the family reunification regulation in the AFMP, EU/EFTA nationals can continue their family life in Switzerland without any legal hurdles.

Requirements for Family Reunification for Swiss Nationals

However, if a Swiss national wishes to bring family members living abroad to Switzerland, the FNIA regulates reunification. The law differentiates between family members who have a permanent residence permit from a country with which a freedom of movement agreement has been concluded (Art. 42 para. 1 FNIA) and those from third countries (Art. 42 para. 2 FNIA). Family reunification is regulated differently for these two groups of persons.

Family Members with an EU/EFTA Residence Permit

The family reunification regulation is adapted to the AFMP, and the same persons can in principle be reunited. However, there is a restriction regarding more distant relatives or the cohabiting partner; family reunification is denied to them. However, a prerequisite for family reunification is that the family member entitled to reunification is in possession of a permanent EU/EFTA residence permit. Nationality is irrelevant. For example, a Vietnamese person living legally in Germany with a residence permit can be joined in Switzerland by her Swiss spouse.

Here too, no time limit is set for the application for family reunification. Furthermore, there is no requirement to live together in Switzerland, provided that the family relationship is nevertheless maintained, and the family members are provided with suitable accommodation.

Family Members without an EU/EFTA Residence Permit

Family reunification is completely different if the family members of the Swiss national come from a third country (non-EU/EFTA country) and do not have a permanent residence permit from an EU/EFTA country. In this case, the group of persons entitled to reunification is limited to the spouse and the unmarried children under the age of 18.

In addition, deadlines for reunification must be observed. The application for family reunification must be submitted within five years, and within one year for children over the age of 12. If the Swiss national has already lived together with the person to be reunited abroad, the time limit begins when they enter Switzerland. If, however, they did not live together, the time limit begins their marriage or the birth/adoption of the child. If the Swiss national waits too long to submit the application, he/she runs the risk of missing the deadline. If the Swiss national misses the deadline, he/she must present "important family reasons" for a subsequent family reunification. The authorities adopted a restrictive approval practice for those cases. It is therefore extremely important to know the deadlines for family reunification and to adhere to them.

Finally, cohabitation in Switzerland is also required. The right of residence requires an actual family relationship. Only in exceptional cases, if there are important reasons, the authorities may authorize separate apartments.

Type of Permit for the Family Members

If a Swiss national reunites foreign family members, they do not receive Swiss citizenship, but only a residence permit (B). This is also repeatedly extended as long as the family community continues to exist. After five years, the foreign family member is then entitled to apply for a settlement permit (C). However, the foreigner must proof sufficient integration into Switzerland in order to obtain this permit. This is different for children under the age of 12, who are directly and unconditionally entitled to a settlement permit (C). The age at the time of application is decisive here.

Family reunification for Swiss nationals is therefore more restrictive than under the AFMP.

Planned Changes to the Law

From the above, it is clear that Swiss nationals are treated unequally when it comes to family reunification compared to EU/EFTA nationals. However, this should change and equal conditions for family reunification be created.

Alignment with the AFMP

Swiss nationals should enjoy the same freedoms as EU/EFTA nationals. In concrete terms, this would mean the abolition of all deadlines for submitting a reunification application. The cohabitation requirement would also be removed. Although family life would still have to be maintained, Swiss nationals would no longer be required to do so in one household. Finally, there would no longer be a distinction between family members with a permanent EU/EFTA residence permit and those without. It should not matter what nationality the foreign family member has and where they resided - legally or not - before the reunification. In addition, the circle of persons entitled to reunification should be aligned to the regulation in the AFMP. In future, Swiss nationals should also be able to bring stepparents and stepchildren, adopted children and cohabiting partners to Switzerland via family reunification. The age of children is to be raised to 21. The intended amendment to the law would therefore harmonize the family reunification requirements with the AFMP. In addition, anyone who has missed the deadline for family reunification in the past could now submit a new application.

Differences to the AFMP

However, the privilege under the FNIA to apply directly for a settlement permit (C) for children under the age of 12 remains unaffected by the change in the law. Children of EU/EFTA nationals who have joined them cannot do so.

At the same time, however, the draft law again provides for unequal treatment compared to EU/EFTA persons. Accordingly, the granting and extension of a residence permit could be linked to the conclusion of an integration agreement if there is a particular need for integration. In future, the migration authority would therefore, under certain circumstances, check whether the integration criteria are met by the person moving to Switzerland before issuing or extending the permit. Under the current law, this is only the case if the foreign person applies for a settlement permit.

As outlined at the beginning, however, it is still unclear whether and when the intended amendment to the law will come into force.

The VISCHER AG immigration team will be happy to assist you with questions and support regarding family reunification.