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09 October 2019

Under the current regulations on family reunification, Swiss citizens are subject to stricter rules than EU/EFTA-citizens based in Switzerland. The Federal Supreme Court of Switzerland has already affirmed the legality of this discrimination against Swiss nationals several times in the past. This decade old unequal treatment may at last be abolished by a parliamentary initiative of June 26, 2019.

For EU/EFTA citizens, family reunification is governed by the rules of the Agreement on the Free Movement of Persons ("AMFP"). Swiss citizens on the other hand are subject to the stricter rules as set forth within the Foreign Nationals and Integration Act (SR 142.20; "FNIA"). In terms of family reunification, the law distinguishes between a "closer" family (spouse/registered partner and unmarried children under 18 years of age) and an "extended" family (relatives in the descending line who are under 21 years of age or who are dependent and relatives in the ascending line who are dependent). Family members of this "extended" family may be brought to Switzerland only if they are in possession of a permanent residence permit from a state with which a free movement agreement has been concluded (EU/EFTA).

With the adoption of the "Metock ruling" of the European Court of Justice (C-127/08), the Federal Supreme Court already abandoned this criteria for relatives of immigrant EU/EFTA citizens in 2009 (cf. BGE 136 II 5, para. 3.7, p. 19). Therefore, EU citizens living in Switzerland may bring their "extended" family members to Switzerland regardless of whether they possess a permanent residence permit form an EU/EFTA state. This resulted in stricter family reunification requirements applying to Swiss nationals than to EU/EFTA citizens living in Switzerland.

Since then, the Federal Supreme Court has had to deal with this question on several occasions and, in a ruling issued in 2010, held out the possibility that it might be able to solve "this problem" itself if the legislators did not find a solution in the foreseeable future (BGE 136 II 120, para. 3.5.3).

A corresponding parliamentary initiative (10,427) was rejected by the Swiss parliament on September 29, 2011. The decisive argument was that family reunification from "third-countries" was one of the few remaining areas in which Switzerland could still determine its own migration policy.

Based on this decision, the Federal Supreme Court also affirmed the legality of discrimination against Swiss nationals (BGer 2C_354/2011 of July 13, 2012) and has confirmed its practice several times since.

With the parliamentary initiative submitted on June 21, 2019, this unequal treatment may now be abolished after a decade. It is not yet possible to predict when the initiative will be discussed by the responsible commission, however, it is unlikely that this will happen in 2019, which is why the outcome is still unknown.

The Immigration Team will be happy to answer any questions and provide further information.

Authors: Urs Haegi, Selim Keller

Topics: ImmigrationFamily reunificationDiscrimination of Swiss nationalsMetock-Ruling

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