Photo: Bernd Konrad/Swiss Refugee Council

Hardship Case

Asylum seekers, dismissed asylum seekers and temporarily admitted individuals who constitute a case of serious personal hardship can receive a residence permit from the canton in which they are living.

A hardship case is deemed to exist when someone is in dire personal straits. This is the case when the person’s living situation is extremely uncertain compared with the average fate that his or her compatriots would face on returning home.

Residence permits in hardship cases

Residence permits in hardship cases are issued for humanitarian reasons. The deciding factor is not the protection of a person from events threatening him or her on a return to his or her country of origin (persecution, acts of war, government brutality, etc.), but rather whether it is reasonable to expect the person to return from a personal, economic and social perspective.

Assessment

The authorities check whether the person can return to his or her native country and reside there. They compare the future situation in the person’s country of origin with his or her individual situation in Switzerland and then make an assessment.

The following requirements must be met for a permit in hardship cases to be granted to asylum seekers and dismissed asylum seekers:

  • The person concerned must have been a resident for a minimum of five years in Switzerland since filing the asylum application;
  • His or her place of residence has always been known to the authorities;
  • The person concerned must be at an advanced stage of integration; and
  • There are no grounds for revocation (Art. 62 FNA)

There are grounds for revocation if the person concerned

  • is dependent on social assistance;
  • issues false statements or conceals material facts in the permit proceedings;
  • is given a long custodial sentence or has been made subject to a criminal measure;
  • has seriously or repeatedly violated public security and order;
  • poses a threat to internal or external security of Switzerland; or
  • fails to fulfill an obligation linked to the decision.

The majority of requirements for temporarily admitted persons match the ones above.  However, they are less stringent. For instance, the law does not specify that the authorities have to be constantly informed about the person’s place of residence.

Criteria for hardship cases

The authorities check the following criteria when assessing a hardship case application:

  • Occupational integration: The person filing the application has a permanent job or prospects of getting hired (has been promised that he or she would be hired, education) and is not dependent on social assistance;
  • Social integration: The person filing the application has created a social environment for him- or herself in Switzerland (club, friends);
  • Language skills: The person filing the application has sufficient knowledge of one of the official languages (German, French, Italian);
  • Identity: The identity of the person filing the application has been determined conclusively (passport, ID, birth certificate, etc.);
  • Law and order: The person filing the application respects the legal system and has not committed any material or repeated crimes;
  • Family situation: Important factors are the time for enrolment and the duration of schooling; and
  • Reintegration in native country: Consideration is given to the difficulties or possibilities facing the person on a return to his or her country of origin.

The application for a residence permit in a hardship case can be filed with the cantonal migration authority. It is recommended that applicants contact the cantonal legal aid office.

Permit proceedings

A hardship case application is filed with the cantonal migration authority. If the application is accepted, the cantonal authority forwards it to the State Secretariat for Migration (SEM). If the SEM consents to it, the person filing the application is granted a B-Permit. If the SEM rejects the hardship case application, the person concerned can file an appeal against this decision with the Federal Administrative Court.

Cantonal differences

Temporarily admitted persons can file an appeal with the competent cantonal court. Asylum seekers and dismissed asylum seekers are not entitled to file an appeal against a cantonal decision. Actual permit practices for hardship case applications vary from canton to canton.