Regarding the possibility for an undocumented person to enter into marriage in Switzerland, the law is clear. Since January 1, 2011, the Brumer law has been in effect. In principle, Article 98 para. 4 CC stipulates that "fiancés who are not Swiss citizens must establish the legality of their stay in Switzerland during the proof procedure." Thus, it is the responsibility of any foreign individual to provide proof that they are staying in Switzerland legally.
However, strictly applying this principle would mean excluding a person from the right to marry solely because they lack legal status. This would infringe on fundamental rights. The right to marry is protected by several texts, such as: Article 12 of the European Convention on Human Rights, Articles 12 and 23 of the UN Covenant II, and Article 14 of the Swiss Constitution. For this reason, it is appropriate to accept that exceptions to this rule are permissible.
In a 2010 ruling, the European Court of Human Rights held that prohibiting a person from marrying solely because they do not have a residence permit is contrary to the European Convention on Human Rights. Indeed, a marriage entered into by a foreigner without a residence permit is not necessarily fictitious. Therefore, the State cannot systematically deny access to marriage. It is up to the cantonal immigration authority to examine each situation concretely.
Thus, Switzerland can grant a short-term permit to a foreigner without a residence permit so that they can prepare for their marriage (Article 17 para. 2 LEI and Article 6 OASA). However, there is a sine qua non condition: that the foreigner granted a short-term permit does not attempt to circumvent the applicable immigration legislation. With this permit, the condition of Article 98 para. 4 CC is met. Once the marriage is completed, the individual may benefit from the opportunities offered by family reunification.
If you need further legal information on this matter, please do not hesitate to contact Valentin Legal Consultation. We would be delighted to welcome you to our offices: either for advice or to use our online services.
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