Irregular migrants to be barred from marriage
As from 1 January 2011, people planning to marry in Switzerland will have to provide proof of their legitimate right to stay. The Federal Council has decided that the respective articles changed in the Swiss Civil Code (Art. 98 Para. 4 and Art. 99 Para. 4) will come into effect as from this date. This equals a factual ban to marry for irregular immigrants and their partners. What are the consequences for couples planning to marry?
Not every marriage of irregular migrants is a bogus marriage
But the new regulation interferes strongly with internationally agreed basic rights. In Art. 12 the European Convention on Human Rights states that "men and women of marriageable age have the right to found a family, according to the national laws governing the exercise of this right". The right to marry freely is also clearly defined in Art. 23 of the International Covenant on Civil and Political Rights and in Art. 14. of the Swiss Federal Constitution. In a position paper for the Helpline for Irregular Immigrants, the Bernese Doctor emeritus Jörg Paul Müller comes to the conclusion that the new regulation, too, has to be interpreted in accordance with the Constitution. In concrete terms, this means that the responsible registrars and judges will still have to assess in every single case whether the legal restrictions concerning a marriage of an irregular immigrant are so strong that they overrule the regulations of basic and human rights. It is for this reason that the ban on marriage for irregular immigrants will continue to be applied only if the marriage is contracted exclusively to obtain the right of stay for one of the spouses.
- Ehen bei rechtswidrigem Aufenthalt in der Schweiz unterbinden : Bundesrat setzt rechtliche Grundlagen auf den 1. Januar 2011 in Kraft
Press release of the Federal Department of Justice and Police, 4 June 2010 (in German)
- Grundrechtliche Probleme, die sich bei der Anwendung der neuen gesetzlichen Bestimmungen betreffend Ehe ergeben
Position paper by Prof. Jörg Paul Müller of 7 September 2009 for the Bernese Helpline for Irregular Immigrants (pdf, 6 pages in German)
- International Covenant on Civil and Political Rights
Text of the Covenant on the OHCHR Homepage
- European Convention on Human Rights
Text of the Convention
Measures to combat bogus marriages
For over 100,000 persons living in Switzerland as irregular immigrants (in 2005) the new regulation equals a general ban on marriage and an additional discrimination. But it does not change the fact that these people live and work in this country all the same. From a human rights point of view the common consent in both chambers of the parliament is unintelligable since politicians at the centre and right wing of the political spectrum accept the fact that Swiss citicens are deprived of their right to enter into a marital relationship with their loved one just because the partner has no proof of identity.
Head of the Department of Justice: «No insurmountable obstacles to marriage»
In her address to the National Council, Federal Councillor Eveline Widmer-Schlumpf stated that the bill did not encounter any resistance throughout the consultation phase, but that it was supported by 21 cantons, five parties as well as the expert authorities on marital status and the municipal authorities. She continued to say that the bill is compatible with both Federal Constitution and the European Convention on Human Rights. She added that «there is an evident need to thoroughly check in every particular case. Like this it can be assured that the constitutional rights are adhered to and that there are no insurmountable obstacles to entering a marriage or a registered partnership».
Hopefully the responsible instances will consider this statement of the Minister of Justice during their daily work.
Older documentation material
- Eheverbot trifft auch Liebespaare
Article in the Schaffhauser Nachrichten of 25 Mai 2009 (pdf, 3 pages, in German)
- Scheinehen unterbinden - Parlamentarische Initiative Brunner
Documentation on the bill on the website of the Parliamentary Services (in German)
- Wortlaut der vorgeschlagenen Änderung (Gesetzesentwurf)
BBl 2008 2479 (pdf, 2 pages, in German)
- Support for young sans papiers grows
Article on www.swissinfo.ch of 27 January 2010