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.

Art. 31 VZAE lists, among other things: degree of integration, respect for the legal order, family circumstances, financial circumstances, length of presence in Switzerland, state of health and the possibilities of reintegration in the country of origin.

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

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.

Is your situation a hardship case?

We assess, on the basis of the criteria in Art. 31 VZAE, whether an application is worthwhile.

Describe your case