Article 30 of the Foreign Nationals and Integration Act (FNIA) lists a wide range of exceptional circumstances in which the migration authorities can deviate from the usual conditions for entry. Most of the article’s twelve paragraphs are aimed at very specific groups of people, but paragraph (b) is more general and offers the authorities broad scope to grant residence permits to almost anyone if they deem it necessary.
Our top tip: These exceptions are made on a case-by-case basis so it’s difficult to give examples. This page presents an overview of how cases are considered, but we encourage you to make an appointment with one of our advisers to discuss your specific case if you think that you may be able to invoke this article.
Serious personal hardship
The provision allows the authorities to consider aspects of your personal situation that are not taken into account within the usual conditions of residence. Hardship doesn’t cover the general situation or quality of life in your home country compared with Switzerland, since this affects entire populations and so can’t be considered exceptional.
In practice, this article is mainly used to legalise the situation of people already living or working in Switzerland and to extend permits that don’t meet the usual conditions for extension. What this means is that it’s essentially of interest only to people already in the country, not those wishing to move here.
Whatever your justification for claiming serious personal hardship, the following factors will be examined:
1. Whether you are well integrated in Switzerland:
– You will likely be expected to demonstrate an above-average level of integration to claim exceptional circumstances;
– Integration consists of numerous factors, including but not limited to language skills, participation in community life, your educational achievements or career trajectory, dependence on welfare benefits and the relationships that you’ve built in the country.
2. To what extent you have abided by the law while in the country:
– You generally need to have behaved in an exemplary manner throughout your stay in Switzerland, with no offences on your record;
– The exception to this is when an illegal immigrant is applying for legal residency, in which case the illegality of their entry and stay does not automatically disqualify them, but it can be taken into account.
3. Your family situation, and schooling in the case of children:
– Having close family members living in Switzerland will work in your favour, particularly if you have no family ties to your native country.
4. Your financial and professional situation:
– Your request may be deemed exceptional if you have gained specific skills, knowledge or qualifications while in Switzerland that you wouldn’t be able to put to good use in your home country.
5. How long you have been living in Switzerland:
– To invoke this clause, you will normally need to have been resident in Switzerland for a significant period of time – in practice, at least eight years or thereabouts;
– Gaps in your residency might affect the decision;
– Time spent in the country illegally can be taken into account but is given less weight than a legal stay;
– Time spent in the country as the holder of a legitimation card or with a precarious or provisional status (e.g. while awaiting the outcome of an appeal against expulsion) is not usually taken into account.
6. Your health:
– You may be able to claim serious personal hardship if you have major health problems that require treatment not available in your home country and that are likely to be aggravated if you are forced to leave Switzerland.
7. How easy it will be for you to reintegrate into your home country:
– You may be granted residency if you can demonstrate that the difficulties that you would face on returning to your home country would be significantly greater than those faced by other citizens of the same country returning from Switzerland. Any specific obstacles to reintegration can be used to support your application; for example, the likelihood of abuse or discrimination;
– Reintegration will probably be deemed possible if you have spent much of your life in your native country, have family members there and/or visit often.
The authorities can also take into account any other factors that they think relevant, and it is important to note that even if you satisfy these criteria, your case might not be judged one of serious personal hardship. The key takeaway is that there must be specific circumstances that would make leaving Switzerland or returning to your home country particularly difficult in comparison to other people forced to leave after a similar length of stay.
All that said, some applicants invoking this clause are granted provisional authorisation to stay if their case is judged to meet the criteria neither for serious personal hardship nor for expulsion.
This clause allows foreigners to be granted entry for the following reasons:
- To take part in legal proceedings;
- For purposes expected to benefit the local cultural or political environment (in which case you will have the right to work);
- Because their presence would contribute significantly to cantonal tax revenue (see below).
Some French-speaking cantons offer high-net-worth foreigners an alternative tax regime called imposition selon la dépense, or lump-sum tax, whereby you agree with the fiscal authorities a fixed tax base on which the tax that you pay will be calculated. The rate applied to this base will then be determined according to the standard income tax scale (with no deductions allowed). The tax base fixed for federal tax can be no less than CHF 400 000, and it is generally similar for the cantonal tax. For example, the minimum in Geneva is CHF 400 000, meaning that your total tax base would have to be at least CHF 800 000.
If you qualify for this tax regime, you can use it to apply for a residence permit without authorisation to work (B rentier permit) on the basis of public interest since it generates signifant tax revenue. Because this kind of permit application is linked to the special tax regime, you should request both at the same time.
The eligibility criteria for this tax regime are as follows:
1. You must not have Swiss nationality;
2. It must be the first time you will be a taxpayer in Switzerland (and you must request it before completing your first tax declaration), or you must be returning after a break of at least ten years;
3. You must not be undertaking any paid work in Switzerland (though managing your own investments is permitted, subject to certain conditions).
If your request is accepted, you will sign an agreement with the authorities valid for five years, at which point a new agreement will be negotiated.
Contact us for more information about this type of application – our experts will be happy to walk you through the whole procedure and can help you to write a convincing letter to the cantonal tax authorities.