B permit, farewell to the term «center of interests».

«An extremely important and constantly evolving topic» described Silvia Gada, head of the Population Department, describing the topic of permits, as she introduced the press conference held today by the Department of Institutions. Norman Gobbi presented modifications in the processing of permit applications within our Canton. These decisions are the result of two rulings (published on September 20) of the Federal Court which, in some way, «condemn» the system used until now. The concession (or revocation) of a residence permit will now no longer require the applicant to reside continuously in our canton or to have its «center of interests» here.

The rulings

«Maintaining a residence permit requires a minimum presence on Swiss territory. To determine this presence, legislators have relied neither on the criteria of the ‘’center of interests’’ nor on that of the domicile, but on two formal criteria, namely: the notification of departure or a stay abroad of six months,« states the judgment of September 3, 2021 in which the Federal Court accepts the appeal lodged by an Italian citizen whose residence permit had been withdrawn in June 2016 because ‘’the center of life and interests of the person concerned were not in Switzerland, but in Italy, where his wife resides.’’ A ruling that was confirmed by the Cantonal Administrative Court in December 2018.

The FSC pointed out, though, that «the movement of one’s domicile or center of interests does not lead to revocation, which can only occur if the person has left Switzerland for at least six months, or if he returns before the expiry of this period, but only for a short time, for tourist, family or business reasons». The judges of Mon Repos pointed out that (in this specific case) «the question to be posed was not that of the forfeiture or even that of the revocation» of the permit, «but that of knowing whether there was a need to renew the EU/EFTA residence permit from which the applicant, an Italian citizen, had benefited until then».

Here comes the « punishment «: « The Cantonal Court, by concentrating only on the question of determining whether or not the claimant had his ‘’center of interests’’ in Switzerland, i.e. a condition concerning cases of disqualification which is not applicable in concrete terms, did not take the matter into consideration and therefore did not rule on the question of the renewal (if any) of the EU/EFTA residence permit. The matter must be referred back to the court of the first instance so that it can clarify which type of EU/EFTA residence permit is in question today, verify whether the conditions of the LPA for issuing or renewing the permit have been met, and issue a new decision.

A very similar speech is made in the other ruling of September 3, 2021 on the appeal of an Italian citizen whose residence permit had been revoked in August 2015 (decision confirmed by the Cantonal Administrative Court in November 2018).

In the course of the conference, Silvia Gada, nevertheless defended the controls carried out by the cantonal authorities, which often ended up at the center of controversy (especially the police inspections at the residence, to ascertain, for example, whether there are clothes in the closet). « Frequently, the Federal Court calls, urges and stresses the importance of checks in order to accept or reject an appeal - he said -. So the checks carried out by the Population Section are protected: the documents provided by the applicant, notice of reporting of the municipalities and, rarely, reports and administrative inspections. On these checks, he specified that «they are carried out only if the situation is not clear».