The issuing of residence permits for educational purposes is legally regulated by Art. 27 of the FNIA and Art. 23 and 24 of the ASEO, which set out certain requirements as discussed in this section. The article of the Foreign Nationals Act (FNIA) is difficult to understand because it contains repetitions and general cross-references to the law.
Article 27 of the FNIA refers twice to a student’s capacity to follow their course as a condition for the residence permit. Specifically, in letter a it states: “the institution’s management confirms [that l’étudiantEx] is able to follow the course or the desired programme of continuing education,” and in letter d:” [l’étudiantEx] has the required level of education and personal skills to follow the course or programme of continuing education as planned.”
The authorities use letter d as the basis for their claim that students must prove that they have no motive for migration other than studying. Unfortunately, students are presumed guilty, especially if their country of origin is targeted by the federal authorities.
The role of the foreign nationals police is to check whether these conditions are being met. However, there’s more to it than that: non-European students do not enjoy the right to free movement. They therefore have no right to a residence permit for educational purposes. This lack of legal regulation means that even when conditions are met, the authorities can still make use of their discretionary power to refuse to issue a residence permit.
The legal remedies against such refusals are limited, which means thatit is very difficult to overturn these decisions by lodging an appeal 1. This is not only because the courts exercise restraint when reviewing these decisions, but also because there are few legal remedies formally available, for example there is no provision for appeals on matters of public law at the Federal Court (Swiss Supreme Court).
The authorities justify their refusal to issue permits by applying a particularly restrictive policy on residence permits for students. They frequently start from the assumption that students are attempting to take advantage of this means of entering Switzerland. Another frequent justification is the struggle against the so-called overcrowding of educational institutions.
Legal basis: Art. 96 FNIA; Art. 83 let.c No 2 FSCA c ch. 2 LTF
It is, however possible to challenge the authorities’ decisions by referring to general principles on the application of the law.
In particular, the authorities’ use of their discretionary power is limited by the concept of “abuse”.
Following the principle that prohibits arbitraryness, one can argue that the authorities have abused their discretionary power. This is often the only possible grievance one can file during litigation, together with the fact that the specific circumstances of the case have not been taken into account.
Legal basis: Art. 5 and 9 Cst
In sum, the authorities cannot refuse a permit without providing valid reasons for doing so.
An example of a court decision that favours students:
The justification of a restrictive policy by reference to overcrowding is not valid in the case of private schools: see ATAF C-4107/2012 of 26 February 2015, recital 7.2 7.2.
Moreover, refusing a residence permit for educational purposes on discriminatory grounds is forbidden. Thus the Federal Tribunal upheld an appeal by a student whose residence permit had been refused primarily on the grounds that he was more than 30 years old. The Federal Tribunal considers that these grounds are not envisaged within the law and do not correspond to any objective justification. This is therefore a question of unlawful discrimination based on age (see ATAF 147 I 89).
Legal basis: Art. 8 para. 2 Cst. A A