Legal basis: Art. 27 para. 1 let. d FNIA, Art. 23, para. 2 ASEO
The authorities need to be convinced that a student’s stated intention in coming to Switzerland – to study – is genuine, and not an attempt to get around the restrictive admission rules that apply to non-Europeans in the Swiss labour market.
According to the ordinance, the authorities verify that “no prior stay, prior application nor any other element suggest that the education or advanced course referred to is solely intended as a means of bypassing the general regulations on the admission and stay of foreign nationals.”
Yet again, this is a question of rooting out “abuse” by “fake” students who are looking to come and work in Switzerland. The authorities expect students to demonstrate the credibility of their project through the documents they submit, for example, their cover letter, curriculum vitae or study plan. The migration authorities have drawn up additional requirements about the maximum duration of studies and age limits for students.
The desire to stay in Switzerland after receiving one’s Bachelor’s degree in order to start a Master’s degree, does not in itself constitute abuse1.
Maximum duration of the education or training
The duration of a stay for educational purposes should not, in principle, exceed 8 years. If the course of study exceeds this period, the student needs to request an exemption. Such an exemption will be granted if a student is following a course of study that “evidences a logical structure”2. For example, a student can be granted a residence permit for educational purposes if they are moving from a higher education institution to a PhD degree.
However, the authorities are much stricter in cases where a student is asking for more time to complete their existing course of study.
For instance, the Geneva courts upheld a refusal to extend a 35 year old student’s residence permit so that he could complete his Master’s degree. At the time of the refusal, he had been a residence permit holder for the previous 12 consecutive years and had had to interrupt his studies because of illness3.
Legal basis: Art 23 para. 3 ASEO
The authorities have developed a practice whereby the require that those applying for a residence permit for educational purposes be younger than 30 years old. This requirement does not, however, feature in the law or the ordinance. In 2021, the Federal Tribunal judged that a refusal of a residence permit for educational purposes solely on these grounds was discriminatory.
Despite this legal decision, the older a student is, the more difficult it will be for them to obtain an initial authorisation, as well as to renew an existing authorisation.
Legal basis: Art. 8 para. 2 Cst. A “no one should be subjected to discrimination on the basis of their origins, race, sex, age(…)“, see ATAF 147 I 89
The “necessary” character of the education and training
The authorities make use of their very broad discretionary powers when assessing whether the education or training is “necessary” for a student. In concrete terms, through the study plans and cover letters they submit to the authorities, students must clearly show that the education or training constitutes a discrete stage in their professional life which will enhance their career.
On the one hand, the authorities look favourably upon academic excellence, yet on the other, they tend to reject students who are already well qualified, claiming that the education or training is not “necessary”.