After years in Switzerland: the path to a hardship permit

A long stay alone is not enough for a hardship permit. The authorities examine a whole series of criteria as a whole. This article sets out what really matters.

Legal basis

The key criteria for recognising a case of serious personal hardship are set out in Art. 31 of the Ordinance on Admission, Residence and Gainful Employment (VZAE, SR 142.201). In addition, the integration criteria under Art. 58a AIG must be taken into account. The list of criteria in Art. 31 VZAE is not exhaustive — the authority makes an overall assessment of all circumstances of the individual case.

How much does the length of stay count?

The length of presence in Switzerland alone does not yet establish a hardship case. In the practice of the cantonal migration authorities, however, it is regularly assumed that after around ten years of uninterrupted presence the ties to Switzerland may have become so close that a hardship case comes into consideration — provided that further criteria such as impeccable conduct, financial independence and good social and professional integration are also met. For families with children this threshold may be lower, in particular with a view to the integration of the children.

Important: periods of purely unlawful residence are not taken into account by the Federal Supreme Court in this assessment to the same extent as a stay with a permit or as an asylum seeker.

The most important criteria at a glance

• Integration: language skills (generally at least level A1), social ties, involvement in clubs, further training
• Financial circumstances: in principle no dependence on social assistance, or only through no fault of your own; if there is no work permit, a job promise from an employer can be submitted
• Respect for the law: no relevant criminal convictions
• Family situation: in particular the situation of children and their roots in Switzerland
• State of health: in the case of illness or age, it must be taken into account whether gainful employment has thereby been made difficult or impossible
• Reintegration in the country of origin: how realistic a return and a fresh start there would be

Special feature during a pending asylum procedure

Anyone who is still in the ordinary asylum procedure cannot, in principle, file a separate hardship application during that time — doing so would otherwise break the principle of exclusivity of the asylum procedure under Art. 14 para. 1 AsylG. For rejected asylum seekers and provisionally admitted persons, a hardship application can be examined after the asylum procedure has been concluded with legal force, on the basis of Art. 14 para. 2 AsylG or Art. 84 para. 5 AIG in conjunction with Art. 30 para. 1 lit. b AIG.

Jurisdiction and procedure

The application must be submitted to the cantonal migration authority. Both the canton and the SEM must agree. The authorities also regularly require disclosure of identity, generally by presenting a valid passport or by proof of corresponding efforts.