2023-04-17 19:47:23
Temporarily admitted persons are allowed to bring their families to Switzerland earlier
According to a judgment from Strasbourg, Switzerland must shorten the period for family reunification. According to the court, three years is too long.
Hopes to see his mother once more soon: 8-year-old Halim with his father Abdul Matin Habibi from Afghanistan.
Photo: Boris Mueller
When Abdul Matin Habibi saw his daughter Moqadas for the last time, she might not speak. She was one year old. Today Moqadas is 5 – and only knows her father from video calls. “She knows I’m her father,” says Habibi. “But she doesn’t know what a father is.”
Habibi lives with his 8-year-old son Halim in a two-room apartment in Emmenbrücke LU. The two share a room. Habibi rented the second one to a compatriot to save money. Every month he sends money to his wife Arzo, who lives in Afghanistan with their two younger children. She used to be a teacher, but now – under the Taliban – Arzo no longer works. 33-year-old Habibi works full-time in the kitchen of a restaurant chain, while his son Halim goes to school.
Parents and children were together in Iran for the last time. Father Abdul Matin Habibi and son Halim traveled on via Turkey to Switzerland. His wife Arzo and the two younger children stayed in Iran. Little did they know at the time that they were going to be separated for years.
The plan had been different: the rest of the family would soon follow. But nothing came of it: Iran sent the mother and two children back to Afghanistan, and Switzerland rejected Habibi’s request for family reunification. The reason: His waiting period has not yet expired.
“Don’t the people who make the laws have children?”
Anyone – like Habibi – who is temporarily admitted to Switzerland and receives an F permit can, according to the law, apply for family reunification following three years at the earliest.
Habibi puts his arm around his son and says, “I don’t understand. Switzerland is good, the people are very nice. But the laws are tough.” Halim was not well for a while. The doctor said there was nothing wrong with him, he just needed his mother. “All children need their mother,” says Habibi. “Don’t the people who make the laws have children?”
A little-noticed verdict with immediate effect
Habibi and his son were not granted asylum in Switzerland – but they were temporarily admitted. Just like all those who are not individually persecuted in their country of origin but cannot return. Be it because the return is not possible, not permissible or not reasonable.
In the EU, these people receive their own protection status, subsidiary protection. In many EU countries they are entitled to family reunification without a waiting period – for example in Germany, France or Spain. Switzerland, on the other hand, is one of the countries with the toughest rules, with a waiting period of three years.
But the State Secretariat for Migration (SEM) is no longer allowed to apply these rules. The Federal Administrative Court ruled at the end of last year that the statutory waiting period of three years should no longer be strictly applied “with immediate effect”. “The SEM now has to examine the individual case shortly before the end of a two-year period.”
Eritrean family got it right
So far, the verdict has received little public attention. This may be because the court announced its verdict on December 7, 2022 – the day on which two new members of the Federal Council were elected. All spotlights that day were on Albert Rösti and Elisabeth Baume-Schneider – the new SVP Federal Councilor and Environment Minister and the new SP Federal Councilor, who as Minister of Justice is now responsible for the asylum dossier. Baume-Schneider is also unlikely to have dealt with the verdict on the day of her election. However, the consequences will still concern you.
The Federal Administrative Court agreed with an Eritrean family. At the same time, it announced that it was adapting its case law to a landmark ruling by the European Court of Human Rights (ECtHR).
A violation of the human rights convention
In July 2021, the ECtHR approved a Syrian’s complaint once morest Denmark – a country that, like Switzerland, stipulated a waiting period of three years for family reunification. He ruled that a strict and automatic application of a waiting period of more than two years was incompatible with the right to respect for family life. “Everyone has the right to respect for their private and family life”: This is what Article 8 of the European Convention on Human Rights says.
With a three-year waiting period, a family remains separated for a very long time, the ECtHR found – even longer than three years because the time span does not include the duration of the flight. According to the ECtHR judgment, the national authorities must assess each individual case if the waiting period is longer than two years. Among other things, they have to consider the well-being of the child.
“The federal government is planning to adapt the legal regulation.”
The SEM is now taking this judgment into account: it is already examining applications for family reunification following eighteen months, writes the SEM on request. However, an amendment to the Aliens and Integration Act is also necessary. The law – it is now clear – contains a provision that violates the European Convention on Human Rights.
But why hasn’t the federal government initiated the change in the law long ago? The ECtHR rendered its judgment in July 2021. More than a year and a half have passed since then. The amendment to the law was started following the judgment of the Federal Administrative Court, writes the SEM. The practice had already been adjusted beforehand. A statutory waiting period of two years is planned; Parliament will decide.
Criticism of other conditions
Refugee organizations welcome the fact that the practice has been adjusted and that a change in the law is planned. However, a shorter period of two years does not go far enough for them: the Swiss Refugee Aid demands a right to family reunification without a waiting period, as for recognized refugees. In addition, she calls for the other requirements to be removed as well.
The Aliens and Integration Act not only prescribes a three-year waiting period. It lists a whole range of other requirements for family reunification: Temporarily admitted persons can only bring spouses and children to Switzerland if the family is not dependent on social assistance, if there is suitable housing and if the spouses and children are in the am local language spoken at the place of residence.
Refugee organizations are hoping for Baume-Schneider
From the point of view of refugee organizations, these requirements are disproportionate. With the social assistance hurdle, a shorter waiting period is useless in many cases, say asylum lawyers. Those affected rarely find a job following a short time. Another obstacle is the term “temporary admission”: Employers don’t want to hire anyone who is only “temporarily” here.
Refugee organizations have long called for temporary admission to be fundamentally changed and replaced with genuine protected status. The Federal Council has also recognized today’s shortcomings. In 2016 – at that time SP Federal Councilor Simonetta Sommaruga was still responsible – he wrote that the shortcomings might only be remedied by a fundamental realignment. However, a reform failed in Parliament.
Federal Councilor Karin Keller-Sutter, as Minister for Asylum, decided not to try once more. Now refugee organizations are hoping for a successor, Elisabeth Baume-Schneider.
“I just want us to be able to live.”
For his part, Habibi hopes to see his wife and two younger children once more soon. He cares regarding her. He has now been in Switzerland for three years and ten months; he has had his F permit for two years and ten months. His appeal for family reunification is pending. Returning to Afghanistan is not an option, says Habibi. There he was in danger. “I just want us to be able to live.”
Halim listens. While playing with a ball, he translates the word “homesickness” for his father. The 8-year-old likes watching cartoons and often gets children’s books from the library. When Halim saw his mother for the last time, he might not read or write. He mightn’t speak German and didn’t know a country called Switzerland. Halim would like to see his mother once more. He misses her.
Found a mistake?Report now.
1681785785
#Shorter #period #family #reunification #Temporarily #admitted #persons #allowed #bring #families #Switzerland #earlier
