The SEM’s approval is not, in concrete terms, a condition for issuing a permit. It is rather a special and additional procedure for nationals of certain countries viewed as representing a “high risk” of “circumventing the legal regulations on residence.”
Thus the SEM maintains a list of countries from which the authorities fear irregular immigration, and that nationals will use educational stays in order to get around the stringent requirements for the issuing of work permits (see section on general principles).
List of countries whose nationals require federal approval:
|Burundi||Cameroon||Democratic Republic of Congo|
|Republic of Congo||Rwanda||South Sudan|
Legal basis: Art. 99 FNIA; Art. 2 let. a of the DFJP (Federal Department of Justice and Police) ordinance on authorisations subject to the approval procedure and to prior decisions on migration law; Annex to the SEM I. 126.96.36.199 1
For any application by a national of one of these countries, the cantonal migration authority (the OCMP in Geneva) asks for the approval of the federal authorities (the SEM). There are therefore cases in which, despite the fact that cantonal authorities have given the go ahead (because they consider that all conditions have been met), the SEM uses its discretionary power to refuse a permit. The SEM is therefore an additional barrier to the issuing of permits and clearly has the last word.
Exception to this principle :
See Decisions of the Swiss Federal Supreme Court ATF 141 II 169.