Renewal of Residence and Cross-Border Commuter Permits for Third-Country Nationals

In Switzerland, there is no single, uniform residence permit; rather, there are a number of different permits, each with its own legal basis, period of validity and legal effects. Third-country nationals, i.e. nationals of countries outside the EU/EFTA, who wish to live and work in Switzerland face significantly higher hurdles than citizens of EU/EFTA Member States, who benefit, for example, from facilitated access under the Agreement on the Free Movement of Persons. Since the relevant permits are always issued for a limited period, the question of whether and under what conditions a permit can be renewed inevitably arises. The following article outlines the key legal aspects.

The Three Main Types of Permit

For third-country nationals, the Foreign Nationals and Integration Act (FNIA) essentially distinguishes between three types of permits that may require renewal and that differ in terms of their purpose, duration and requirements for renewal:

• Short-stay permit (“L permit”, Art. 32 FNIA): The L permit is issued for fixed-term stays of up to one year and may be renewed within the statutory maximum period of up to two years. Once this maximum period has been reached, the person concerned must leave Switzerland for at least one year before submitting a new application, unless, for example, the employment is of a recurring annual nature.
• Residence permit (“B permit”, Art. 33 FNIA): For third-country nationals, the B permit is generally issued in practice for one year at a time and subsequently renewed annually, although exceptions may be made in justified individual cases. Renewal is subject to the continued fulfilment of the original requirements for granting the permit. The B permit is the standard permit for employees, students and family members who have joined a family member in Switzerland. Since a residence permit is issued for a specific purpose of stay, with or without gainful employment, it may, in the case of lump-sum taxation, be linked to an arrangement involving lump-sum taxation.
• Cross-border commuter permit (“G permit”, Art. 35 FNIA): This permit is intended for persons who reside in a neighbouring country and work in Switzerland. For third-country nationals, the G permit is initially issued for one year and may subsequently be renewed at the discretion of the competent authority. After five years of uninterrupted employment as a cross-border commuter, there is a legal entitlement to renewal, provided that none of the grounds for revocation under Art. 62 para. 1 FNIA apply. Anyone who transfers their centre of life to Switzerland no longer falls within this category and requires a residence permit.

Requirements for Renewal

Irrespective of the type of permit, the cantonal migration authorities essentially examine the same key issues when considering an application for renewal:

1. Continuation of the Purpose of Stay

Since permits for third-country nationals are issued for a specific purpose, renewal generally requires the original purpose of stay to continue to exist at the time of the application. If the purpose ceases to exist — for example, because the employment relationship on which the permit was based has ended — the permit will not be renewed.

2. No Grounds for Revocation under Art. 62 FNIA

As a general rule, renewal requires that none of the statutory grounds for revocation applies. These include:

• providing false information or withholding essential facts during the permit procedure;
• being sentenced to a lengthy custodial sentence or being subject to a criminal measure within the meaning of Art. 59–61 or 64 of the Swiss Criminal Code;
• a serious or repeated breach of, or threat to, public security and order, or a threat to Switzerland’s internal or external security;
• failure to comply with a condition attached to the permit;
• reliance on social assistance by a person for whom the person concerned has a legal duty to provide support;
• attempting to obtain Swiss citizenship by abuse of rights;
• failure, without a valid reason, to comply with an integration agreement.

Whether a ground for revocation actually results in non-renewal always depends on the circumstances of the individual case and the applicable proportionality assessment. The Federal Supreme Court regularly requires a balancing of the public interest in removal against the private interests of the person concerned, taking into account factors such as the length of residence, family circumstances and integration.

3. Fulfilment of the Integration Criteria

Particularly in the case of longer-term residence or when transitioning to a settlement permit, the integration criteria under Art. 58a FNIA play an important role. These include compliance with public security and order, respect for the values of the Federal Constitution, language skills in the language spoken at the place of residence, and participation in economic life or acquisition of education.

Conclusion

For third-country nationals, the renewal of a residence or cross-border commuter permit is not automatic but involves a renewed substantive assessment. The original purpose of stay must continue to exist, there must be no applicable grounds for revocation under Art. 62 FNIA, and, depending on the circumstances, the integration criteria must also be fulfilled. Applicants should therefore submit the relevant documents early and in full and, where necessary, seek professional legal advice in good time.