A ruling by Switzerland’s highest court has eased a controversial new law that prevents foreign nationals without a valid visa from getting married.
In force since January 1, 2011, the law was initiated by the rightwing Swiss People’s Party to restrict the possibility of marriages of “convenience” – people marrying to improve their visa circumstances and subsequently applying to bring their families to Switzerland.
Critics said the law breached human rights because it excluded an entire category of people from the right to marry.
In a new legal precedent set by the Federal Court, such marriage requests will no longer be automatically denied, and exceptions will be allowed.
The case before the court involved a Cameroon man without a residency permit who wanted to marry a legal Swiss resident. The couple had a child aged three.
The father appealed against a decision by the Vaud cantonal authorities and court turning down the marriage request. He ended up taking his case to the Federal Court, which in turn overturned the cantonal ruling.
It is the first time the Federal Court has ruled on the law in question; article 98, al. 4 of the Swiss Civil Code, which states: “Fiancés who are not Swiss citizens must establish the legality of their status in Switzerland during the course of the preparatory procedures.”
In handing down its ruling, it referred to a decision by the European court in Strasbourg which found that the Swiss system could contradict article 12 of the European Convention of Human Rights in cases where “a foreigner in an irregular situation genuinely and sincerely wants to get married”.
The Federal Court said the fact that the couple would have to go abroad to get married infringed European Convention requirements.
It stated that police authorities in charge of foreigners “should issue a residency permit for a marriage if there are no indications that the foreigner concerned intends, by this act, to abuse the rules on family reunification”.
In this particular case, the couple had a stable relationship, and “fulfilled all the conditions needed to obtain a residency permit for marriage”, the court said.
The Swiss migration policy organisation Solidarité sans frontières said it would probably mean authorities would have to give foreigners a six-month permit to stay in Switzerland, during which time the marriage would have to have been processed.
The organisation, which has supported the national platform for “sans-papiers”, or illegal residents, in Switzerland in campaigning against the law and in taking individual cases to court, was thrilled by the Federal Court’s move.
“The court decision is more or less flipping the whole situation back to the way it was before January 1, 2011. In general it means that the [so-called] Lex Brunner is now history,” general-secretary Moreno Casasola told swissinfo.ch, referring to the politician Toni Brunner who was behind the law.
“We always said this isn’t right. You can’t deny the right to marriage because it breaks so many laws. Everyone, in every country, has the right to be married. It doesn’t matter which nationality they have.
“It was not only denying the right to marry to those without permission to stay in Switzerland but also to Swiss people.”
Of some 42,000 marriages celebrated in Switzerland in 2009, just under half - 20,380 – involved at least one foreign national, according to figures from the Federal Statistics Office.
The Vaud cantonal court decided in September that the law as it stood was hard to enforce and a Vaud politician has requested it be clarified by the justice ministry.
In its ruling made public on Thursday, the Federal Court noted that the law had been brought in to stop the automatic issuing of residency permits whenever there was a request for marriage, as had been the case in the past.
The Swiss People’s Party had originally put forward the law as a result of marriage being used by people wanting to obtain a visa.
In 2004 the Federal Civil Status Office estimated that between 500 and 1,000 marriages – three per cent – were not genuine.
It has said the new Swiss law is “not a question of proving a marriage of convenience” but about establishing if a person has a right to be in Switzerland.
The People’s Party said it was disappointed with the court’s ruling.
Martin Baltisser, the party secretary-general, told swissinfo.ch: “The Federal Court’s interpretation of the article of this law significantly limits the scope for cracking down on sham marriages. This is regrettable and once again shows the unresolved issue of the relationship between national law and international law.”
European Convention on Human Rights
Switzerland ratified the European Convention on Human Rights in 1974.
Right to marry – Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Prohibition of Discrimination - The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The Swiss Civil Status Office has previously said their legislation was compatible with the European Convention on Human Rights “at least in terms of the application of the law that must be carried out by the authorities”.
Checking for sham marriages
If a cantonal migration office suspects a marriage of convenience they bring in the police. Police will visit the couple at home and will ask them questions about the marriage separately such as the date, guests, location.
Usual indicators are:
- the marriage is connected to a person being told to leave the country, eg a negative asylum decision or an extension request to stay on is denied.
- the couple only knew each other for a short time before getting married.
- there is a large age difference between spouses.
- where the Swiss national spouse has an alcohol or drug addiction.
Cases are usually closed based on circumstantial information. Cases are hard to detect in the run-up to a marriage and are mostly confirmed in retrospect, for example, when the authorities learn that the spouses have not lived together.
Confirmed cases are punishable with a custodial sentence or a fine.