Marriage ban for irregular migrants - Federal Supreme Court clarifies
The implementation of the new provisions of the Swiss Civil Code for the fight against bogus marriages is problematic since rejected asylum seekers and irregular migrants cannot be denied the right to marriage (Art.12 ECHR) systematically. The Swiss Federal Supreme Court now has taken a fundamental decision, leading the way in which to implement the so-called «Lex Brunner» in a manner compliant to human rights. In their line of reasoning the judges in Lausanne follow a judgement by the European Court of Human Rights (ECtHR) of 2010.
In a case before English law, the ECtHR had decided that marriage should not systematically be denied to irregular migrants. Measures against bogus marriages need to be proportionate, and it should be clearly established whether the wish to marry is based on an honest intention.
According to the Federal Supreme Court, the so-called «Lex Brunner» might contradict the ECHR should it be applied irrespective of the individual case. Civil registry offices’ hands are bound, since the legislator has left little room for a flexible handling in line with the ECHR.
It is therefore a matter for the immigration authorities to allow marriages and to decide on the proportionality in the individual case and to issue a provisional residence permit in order to allow a marriage procedure. According to the Court several prerequisites need to be fulfilled. On the one hand, there shall not exist any evidence for malpractice – a bogus marriage, and on the other hand it has to be ascertained that the foreign person fulfils all requirements for a furthermore legal stay in Switzerland after his or her marriage. Conversely the Federal Supreme Court sees no reason to prolong the stay of a person for the sake of a wedding, if he or she will have to leave Switzerland all the same afterwards; this limitation represents the wishes of the legislator.
Review called for
In a specific case the court found in favour of a couple willing to marry from the canton of Vaud. They originate from Cameroon, have been living together since 2007 and have a 3-year-old child. Whereas the man is a rejected asylum seeker, the woman has a residence permit which is extended at regular intervals. In 2011, the canton of Vaud authorities refused to consider the application of the man to allow him a stay for the wedding. The Federal Supreme Court is now calling for a review since all requirements for a residence permit are fulfilled, and it considers the willingness of the future couple to be genuine, as the circumstances show. In addition, the husband could join his wife in Switzerland after their marriage on the basis of the International Covenant on Civil and Political Rights.
- Federal Supreme Court verdict 2C_349/2011 of 23 November 2011 (pdf, 5 pages in French)