Switzerland: Switzerland: The Right Of Residence Of Family Members Of European Community Nationals Who Are Swiss Residents - A "Politically Correct" Decision

In a 19^th December, 2003 ruling, (case 2A.246/2003, considered for official publication), the Swiss Federal Supreme Court (hereafter "FSC", www.bger.ch) clarified the situation regarding the right of residence of third country ¹(family members of EC nationals who are Swiss residents (hereafter "Family Members"). It held that:

• the "same roof" requirement (i.e. household living permanently under the same roof) does not apply to such Family Members;

• the Swiss authorities may nevertheless deny Family Members the right to reside based on the general principle prohibiting the abuse of rights.

The above system is the same as for third country family members of Swiss citizens. One cannot help but wonder whether the great lengths the FSC went to "justifying" the application of the "abuse of rights" principle does not indicate that this ruling has a political agenda. Indeed, if the FSC had found that the "abuse of rights" principle was not applicable or only applicable within strict boundaries, a clear advantage would have been given to the family members of EC nationals over the family members of Swiss nationals.

This case was brought before the FSC following the non-renewal of a Brazilian lady’s "B" residence permit by the cantonal authorities based on the following facts:

• she was no longer living with her Italian husband who was the holder of a "C" permanent residence permit in Switzerland, and

• she claimed that she was entitled to reside in Switzerland although she had separated from her husband (but had not accepted to divorce him).

The Swiss Federal law on the residency and establishment of foreigners (hereafter "LSEE"²) provides that it is "applicable to nationals of Member States of the European Community or to their Family Members provided that the Agreement dated 21^st June 1999 between the European Community and its Member States, on the one hand, and the Swiss Confederation, on the other hand, on the free movement of persons (hereafter "ALCP") does not provide otherwise or if the present law is more favourable".³

Based on the foregoing, the FSC reviewed the factual situation under both the LSEE and the ALCP.

a) "Same Roof" requirement

Art. 17, Paragraph 2, LSEE sets forth the "same roof" requirement for spouses of foreign residents established in Switzerland ("C" permit). The said condition does not apply to the spouses of Swiss nationals (art. 7, LSEE).

The FSC noted that this difference in treatment based on the citizenship of the spouse was a clear choice made by the Swiss legislator and concluded that based solely on the LSEE, the Brazilian lady, having left the "marital domicile" would not be entitled to the renewal of her residence permit.

The FSC pursued the analysis of the "same roof" requirement under the ALCP, art. 3 of which provides that "a person who has the right of residence and is a national of a Contracting Party is entitled to be joined by the members of his family. An employed person must possess housing for his family which is regarded as of normal standard for national employed persons in the region where he is employed, but this provision may not lead to discrimination between national employed persons and employed persons from the other Contracting Party.

c) In the case of a student, his spouse and their dependent children".

This provision does not specifically provide for a "same roof" requirement, the only requirement mentioned being the "normal housing" one.

After explaining in detail to which extent the FSC is bound by the precedents of the European Court of Justice, the FSC summarized the Diatta⁴ case rendered of the European Court of Justice on February 15^th, 1985 ⁵

This decision provides that "the right of residence provided for in article 10 of Regulation No 1612/68 for the members of a migrant worker' s family is subject to the requirement laid down in article 10 (3) that the accommodation which the worker has available must be such as may be considered normal for the purpose of accommodating his family. However, it is not conditional on any requirement that the family must live under the same roof permanently".

Based on this clear-cut decision, the FSC found that the "same roof" requirement was not applicable to Family Members of European nationals residing in Switzerland. The Brazilian lady’s case was back in the arena…

Restrictions based on the principle forbidding the abuse of rights

Based on art. 2, Paragraph 2 of the Swiss Civil Code (hereafter "CCS") which prohibits the abuse of rights, the FSC has developed a fairly constant legal principle stating that if the marriage subsists only "pro forma", reliance on the LSEE, art. 7, Paragraph 1 LSEE to obtain a residence permit constitutes a manifest case of an abuse of rights (FSC decision or ATF ⁶128 II 145, ATF 127 II 49). Art. 7 § 2 LSEE specifically mentions situations of marriages of convenience.

The FSC therefore proceeded whether to applying this legal principle to situations arising under the ALCP.

Pursuant to art. 5, Paragraph 1, ALCP, "the rights granted under the provisions of this Agreement may be restricted only by means of measures which are justified on grounds of public order, public security or public health".

On this issue, the Diatta case specifically found that the "marital relationship cannot be regarded as dissolved so long as it has not been terminated by the competent authority. It is not dissolved merely because the spouses live separately, even where they intend to divorce at a later date."

Still concerning the Diatta case, the European Court of Justice found that "similarly, it is clear from article 4 (3) and (4) of Council Directive No 68/360/EEC of 15 October 1968 on the Abolition of Restrictions on Movement and Residence within the Community for Workers of Member States and their Families (Official Journal, English Special Edition 1968 (II), p. 485) that the issue of a residence permit is subject solely to the objective requirement of marriage and not the additional requirement of a shared dwelling.

At the hearing, the Commission went further and expressed the view that the right of residence of members of a migrant worker’s family and their right to exercise an activity as employed persons throughout the territory of the host state would not be extinguished in the event of severance of the family relationship after entry into that territory." (emphasis added).

In the decision which is the subject matter of this note, the FSC adopted the standards for "abusive or fraudulent" acts laid down by the Singh case⁷ rendered by the European Court of Justice on 7^th July, 1992⁸. This case provided that "as regards the risk of fraud referred to by the United Kingdom, the facilities created by the Treaty cannot have the effect of allowing the persons who benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse".

The FSC also took into account the recent Akrich⁹ case rendered by the European Court of Justice on September 23^rd 2003¹⁰, where the European Court of Justice was requested to render a preliminary ruling on the following question:

"Where a national of a Member State is married to a third-country national who does not qualify under national legislation to enter or reside in that Member State, and moves to another Member State with the non-national spouse, intending to exercise Community law rights by working there for only a limited period of time in order thereafter to claim the benefit of Community law rights when returning to the Member State of nationality together with the non-national spouse:

(1) is the Member State of nationality entitled to regard the intention of the couple, when moving to the other Member State, to claim the benefit of Community law rights when returning to the Member State of nationality, notwithstanding the non-national spouse's lack of qualification under national legislation, as a reliance on Community law in order to evade the application of national legislation. (…)" (emphasis added).

The Akrich case provides that "as regards the question of abuse mentioned at paragraph 24 of the Singh judgment, cited above, it should be mentioned that the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State provided that he there pursues or wishes to pursue an effective and genuine activity (Case 53/81 Levin [1982] ECR 1035, paragraph 23).

Conversely, there would be an abuse if the facilities afforded by Community law in favour of migrant workers and their spouses were invoked in the context of marriages of convenience entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member States" (emphasis added).

The FSC saw the Akrich ruling as providing useful insight in interpreting the above-mentioned Diatta case and held that "marriage, as a formal requirement giving the right of residence to a spouse, does not go so far as to protect an abusive claim to such a right".

Unlike the FSC ruling, we believe that the Akrich case read in conjunction with the Diatta precedent restricts the concept of "abuse or fraud" to extreme situations such as marriages of convenience. In this respect, the following "Findings" of the European Court of Justice seem quite clear:

"Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.

Where a national of a Member State married to a national of a non-Member State with whom she is living in another Member State returns to the Member State of which she is a national in order to work there as an employed person and, at the time of her return, her spouse does not enjoy the rights provided for in Article 10 of Regulation No 1612/68 because he has not resided lawfully on the territory of a Member State, the competent authorities of the first-mentioned Member State, in assessing the application by the spouse to enter and remain in that Member State, must none the less have regard to the right to respect for family life under Article 8 of the Convention, provided that the marriage is genuine" (emphasis added).

The fact that the European Court of Justice specifically analysed the situation under the "anti-abuse" principle set forth by the Singh case and maintained that prior motives are irrelevant when assessing the application to enter and remain in a Member State demonstrates in our opinion that the only restriction to such right of residence covered by the Singh case relates to the genuine character of the marriage.

In view of the above considerations, we believe that under the European Court of Justice precedents, the anti-abuse restriction only applies in cases of marriages of convenience and cannot therefore be applied as such to other situations.

Finally this might have been an opportunity for the FSC to investigate the solutions adopted by the courts of the Member States, although they are not of course directly applicable.

The main issue underpinning the debate on the application by the FSC of the principle of the prohibition of "abuse of rights" here, is that a differentiated application of this principle based solely on the spouses’ citizenship would automatically have created a more favourable treatment of Family Members of European Community Nationals established in Switzerland compared to those of the family members of Swiss citizens.

To avoid such an inequality of treatment, the FSC had two main options, i.e. either find that the ALCP does not prohibit the application of the "abuse of rights" principle as defined by the FSC precedents (the solution adopted by the FSC), or modify the scope of the "abuse of rights" principle when applied to the right of residence of family members of Swiss citizens.

The latter option would have meant to acknowledge that the precedents from the European Court of Justice have a far-reaching direct impact on Swiss internal rules, and we believe therefore that the result adopted by the FSC, although not entirely immune to criticism as to the legal reasoning, is nevertheless the wiser course of action.

Footnotes