Zug, 27.05.2020

Federal court decision:

A son-in-law's application for family reunification is also unsuccessful in the Federal Court.

The couple arrived in Switzerland in the summer of 2016. The Chinese citizens wanted to visit their daughter, who lives in the canton of Zug with her German husband and two children. Although their visitor visa was issued for a limited period of time, they are still in Switzerland today. The reason: a legal dispute, which has only now come to an end in the Federal Court (Bundesgericht). At the heart of the issue is whether the Free Movement Agreement (Freizügigkeitsabkommen) with the EU can be used to substantiate a claim by the Chinese couple for a residence permit.

The request for family reunification was made by the Chinese couple's son-in-law, a German holding a residence permit, two months after their arrival. He justified this with the illness of his father-in-law, who suffers from a rare form of leukaemia. He has had surgery in Switzerland, but the desired success had not been achieved.

Do health care costs count as maintenance needs?
The cantonal authorities rejected the request, whereby the son-in-law appealed to the Federal Court. There, he repeated his request for a residence permit for his in-laws. The crucial passage can be found in Annex I to the Agreement on the Free Movement of Persons: family members may reside with persons who are citizens of a Contracting State and who have a right of residence. This also covers the spouse's parents, irrespective of nationality, provided that their maintenance is guaranteed. And that is precisely the point that is controversial for the Federal Court. The son-in-law argues that even vital extraordinary health costs were part of the maintenance needs.

He had paid CHF 30,000 for the treatment of his father-in-law, as well as also accepting the demands of the compulsory health insurance for his parents-in-law. The right to be able to insure themselves in this country had to be legally established for the couple: for this reason, the case had therefore landed in the Federal Court for the first time in 2018. At that time, the Supreme Court had ruled that the father-in-law should be included in compulsory health insurance.

Payments enabled higher living standards
The Federal Court, which dealt with the case with five judges instead of the usual three, has rejected the son-in-law's objections. The decisive factor was whether the relatives were able to cover the basic needs themselves, or whether they needed support from the person who was entitled to reside in Switzerland. The decisive factor for this is the situation in China, and the need for support there, the chief judges note.

The maintenance provided in Switzerland would only have to be taken into account if the family members had been in the country for several years. That is not the case, however, as the couple only have a temporary visitor visa. For this reason, the costs of medical treatment incurred by the son-in-law in this country do not change the result.

The in-laws would normally have been able to pay for their basic needs themselves in China, the judgment continues. The benefits they received from their daughter's family should only allow them to "benefit from a slightly higher standard of living". As the Federal Court is of the view that these are not maintenance benefits as stipulated by the Free Movement Agreement for a right to family reunification, the appeal was dismissed. The Chinese couple will now have to leave Switzerland.

The verdict can be found here.  (judgment 2C_757/2019 of 21 April)