Author: Lawyer Enrico Germano

In a recent ruling in German language on 27 December 2022, the Federal Supreme Court, Switzerland’s highest judicial authority, had had to rule on the revocation of a settlement permit in the Swiss Canton of Appenzell Ausserrhoden because its holder, a Spanish citizen born in 1958 and having arrived in Switzerland on 13 March 1993, had been receiving social assistance for about 15 years.

He had worked as an unqualified construction worker for about five years. Then from 1997 onwards he had received an invalidity insurance (IV) pension due to a back problem, which was stopped at the end of 2005 by order of the IV on 14 November 2005. From November 2006 to March 2021, he was supported by social assistance in the amount of CHF – Swiss Francs – 288,723.30. By order of 8 April 2020, the migration department of the Canton of Appenzell Ausserrhoden had revoked his settlement permit and ordered his removal from Switzerland. But since 1 April 2021, he has been receiving an old age and survivors’ insurance pension and supplementary benefits as a result of his early retirement and no longer benefits from social assistance.

The Federal Supreme Court, after pointing out that it is consistent practice that the concrete risk of dependence on social assistance, in other words the ground for revocation of a residence permit under Article 63(1)(c) Federal Act on Foreign Nationals and Integration Act, FNIA 1 , must continue to exist when the authority of last instance adjudicated on the case, noted that in this case the applicant was no longer in receipt of social assistance when the Cantonal Court had ruled, but had been receiving an an old age and survivors’ insurance pension and supplementary benefits for about eight months 2

According to Art. 63 § 1c Federal Act on Compulsory Insurance against Unemployment and Insolvency Compensation 3 , a settlement permit may be revoked if the foreigner is permanently and substantially dependent on social assistance. According to case law, permanent and substantial welfare dependency within the meaning of Art. 63 para. 1 let. c Federal Act on Compulsory Insurance against Unemployment and Insolvency Compensation requires a concrete risk of permanent and substantial welfare dependency; mere financial concerns are not sufficient 4 . In addition to the previous and current circumstances, the likely long-term financial development must also be assessed. Withdrawal of the settlement permit is considered if a person has received a high level of financial support and cannot be expected to be able to provide for his or her livelihood in the future 5 . According to the established case law of the Federal Supreme Court, supplementary benefits to the old age and survivors’ insurance pension/invalidity insurance do not fall under the concept of social assistance and therefore the receipt of supplementary benefits does not constitute grounds for revoking the residence permit in accordance with Art. 63 para. 1c Federal Act on Compulsory Insurance against Unemployment and Insolvency Compensation.

However, the ground for withdrawal of social assistance dependency existing at the time of the contested judgment does not cease to be valid if the person concerned will receive an old age and survivors’ insurance pension in the future because of retirement or early retirement and will be dependent on supplementary benefits because of the low pension. In other words, the person concerned, who at the time of the contested judgment fulfils the ground for withdrawal of dependence on social assistance, cannot rely on the fact that he will retire (or retire early) in the future and that social assistance will therefore be replaced by supplementary benefits. Future supplementary benefits are in fact a burden on the public purse, which must be taken into account when examining the proportionality of the withdrawal of the residence permit 6 .

In the present case, however, the situation is different: at the time of the lower court’s ruling, which is the subject of an appeal to the Federal Supreme Court (so-called devolutionary effect, and on whose facts the appeal is based (Art. 105, para. 1 Federal Supreme Court Act), the appellant was no longer in receipt of social assistance, but had already been receiving an old age and survivors’ insurance pension with supplementary benefits for about eight months. The ground for the withdrawal of the dependence on social assistance pursuant to Article 63 para. 1 lit. c 1c Federal Act on Compulsory Insurance against Unemployment and Insolvency Compensation therefore no longer existed at the time of the contested judgment 7 .

1 Federal Act on Foreign Nationals and Integration Act, FNIA dated 16.12.2005

2 Urteil des Budesgericht 2C_60/2022consid. 4.4, vom 27. Dezember 2022, II. öffentlich-rechtiche Abteilung

3 Federal Act on Compulsory Insurance against Unemployment and Insolvency Compensation, dated 25.06.1982

4 Decision of the Federal Supreme Court 2C 458/2019 dated 27.09.2019 E. 3.2; 2C 98/2018 dated 7.11.2018 E. 4.1

5 Decision of the Federal Supreme Court 2C 181/2022 dated 15.08.2022 E. 6.1; 2C 592/2020 dated 28.04.2022 E. 5.1

6 Urteil des Budesgericht 2C_60/2022consid. 4.4, vom 27. Dezember 2022, II. öffentlich-rechtiche Abteilung, Ziffern
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7 Urteil des Budesgericht 2C_60/2022consid. 4.4, vom 27. Dezember 2022, II. öffentlich-rechtiche Abteilung, Ziffern
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