Approval procedure subject to review

In 2015, a Portuguese worker who was incapacitated for work by illness applied for a residence permit relying on the right to stay contemplated in the Agreement on the Free Movement of Persons. The relevant cantonal authority, the Service de la Population du canton de Vaud (SPOP), refused to grant him a permit and ordered his removal from Switzerland in 2017. In 2019, the Cantonal Court of Vaud upheld his appeal. This cantonal judgment was not disputed before the Federal Supreme Court.  The SPOP subsequently referred the file to the State Secretariat for Migration (SEM) for approval. Deeming that the requirements for recognition of the right to stay were not satisfied, the SEM refused to approve the granting of a residence permit. The applicant lodged an appeal with the Federal Administrative Court (FAC).

Separation of powers
The approval procedure is intended to enable the SEM to exercise federal oversight throughout Switzerland. In June 2019, an amendment to Article 99 of the Federal Act on Foreigners and Integration (FNIA) came into force. Under this amendment, the SEM is expressly empowered to refuse its approval even if the granting or extension of a permit was ordered by a cantonal appellate authority.

In the case at hand, the SEM refused its approval although the granting of the requested permit had been accepted by a cantonal judicial authority of the last instance. The FAC points out that this practice is contrary to the separation of powers and to the fundamental procedural guarantees enshrined in the Constitution and the European Convention on Human Rights. If the SEM deems that the granting or extension of a permit is not justified, it must, where the remedy of appeal is available, refer the matter to the Federal Supreme Court which is the only body empowered to overturn the decision of a cantonal court in such circumstances.

The FAC grants the appeal in this case and, in so doing, reverses the SEM decision. Considering the specific requirements for the right to stay as well, the FAC approves the granting of a residence permit to the appellant.

This Judgment is subject to appeal, and the State Secretariat for Migration may therefore bring the matter before the Federal Supreme Court.