On 24 November 2022, the Swiss Federal Administrative Court (TAF) gave its judgment (F-2739/2022) regarding the request for family reunification of an Eritrean national with his wife and child. This request was initially rejected on grounds that the three-year period had not expired and that the conditions of financial independence were not fulfilled. The Swiss Court addressed whether this three-years period established in domestic law is in compliance with the principles defined by the European Court of Human Rights (ECtHR) in the judgment of M.A. v. Denmark (application no. 6697/18).
Firstly, the Court affirmed that, even if Article 8 of the European Convention on Human Rights (ECHR) does not guarantee an absolute right to family reunification, this right obliges states to allow family reunification depending on the circumstances of the people concerned and the general public interest, while following a fair balance of interests. Additionally, it highlighted that even if the best interest of the child is not a determining factor by itself, it must be awarded an important weight.
The Court found that the decision-making process must offer sufficient guarantees of flexibility, expedition and effectiveness to ensure that the right under Article 8 ECHR is respected. It held that the landmark ruling in M.A. v. Denmark established that states are allowed to have two years waiting period that will be in accordance with the respect for family life as a rebuttable presumption; however, any waiting period longer than two years must be subject to a full individual assessment in the light of the concrete situation of the people concerned, to verify whether a shorter period is needed for reasons of family unity.
The Swiss Court reiterated that it is the duty of the authorities and the courts to align their practice with the ECtHR judgment in M.A. v. Denmark. An effective waiting period of two years would oblige the Swiss authorities to individually and thoroughly examine the requests to determine whether the waiting period should be shorter than the three years prescribed by law in order to comply with the right to family life enshrined in Article 8 of the Convention. In this assessment, the Court reiterated that the factors mentioned by the ECtHR must be taken into account, such as the level of integration in the host country, the existence of obstacles to enjoy family life in the country of origin or in a third country, and the best interest of the child.
The Court further held that in the present case the authorities had strictly applied the waiting period of three years and had not carried out an adequate individualized examination of the request in line with international obligations. Nonetheless, the Court considered that the initial authorities are best placed to assess the specific circumstances of the family. For the above reasons, the Federal Administrative Court admitted the appeal, annulled the contested decision and referred the case for reconsideration.
Based on an unofficial translation from within the EWLU team.