The SEM handbook on foreigner law.

Section 6.16
German
https://www.sem.admin.ch/dam/data/se...ngen-aug-d.pdf

French:
https://www.sem.admin.ch/dam/data/se...ngen-aug-f.pdf

Italian:
https://www.sem.admin.ch/dam/data/se...ngen-aug-i.pdf

Yes and no. My post was to do with nationality law which is a Lex specialis with regards to residency for purposes of naturalisation.
See p.13 https://www.sem.admin.ch/dam/data/se...g18-kap3-f.pdf

The previous manual for the old nationality law was clearer in my opinion but it doesn’t seem that the new law has changed this point.

Thank you very much for your reply.
The gentlemen at the Migration office told me that he cannot be out of the country more than 6 months in a year. So lets say he is here Jan-July 2018, leaves for the US in July and returns next June 30 2019. As long as he remains in Switzerland for the remainder of 2019 he would be within the law.

However, his purpose of being abroad is for medical reasons and not educational so not sure if the same law applies.

Regarding Continued payment of obligatory insurances, does that mean students with c permits studying abroad have to have Swiss health insurance? And they do not have to have their permits put on hold? If that is the case, the Migration office gave me false information.

But then he is not a student, so that wouldn´t apply anyway

Yes you must continue to pay his heath insurance premiums and his permit does not need to be on hold. His place of domicile will remain in Switzerland because that’s where the centre of his interests are.

There’s no legal difference between a school pupil or a university student in this case. The purpose of overseas residency is education so he fits, because he would be attending school abroad. It doesn’t matter if the original reason was medical.

If that is true, why would they (the migration office) tell me I had to put his permit on hold?

They might well have been unaware of the exception or have thought you wouldn’t have wanted to have to pay mandatory insurances while he’s abroad.

Ask them about Section 6.16 of the SEM handbook, why it does not apply, and what conditions have to be fulfilled so that it would apply in your sons case. Although it is cross referenced in other sections one can not know all pages of an 258 page document.

My son was granted an Aufrechterhaltung Niederlassungsbewilligung, based on medical reasons until June 30 2019. His treatment has taken longer than expected, however, we need to consider his schooling options and therefore applied for an extension based on the fact he would need two years to finish High School in the US. Regardless of how long my son's medical treatment would last, we wanted him finishing school in the US and then come back to Switzerland for University. We sent our request at the beginning of March 2019.
The Migrationampt replied asking for additional information as to what type of school he would attend, and what type of degree would he earn. We contacted the High School, asked for a letter explaining the above and sent it to the Migrationampt. The letter was sent at the end of April.

As we had not heard from the Migration Ampt, I called last week asking what the status was regarding our request for my son. I was told that I received a registered letter on 8 May explaining the outcome. I told him that I did not receive the letter and that I would like to know the decision. He continued to yell at me stating that I had signed for this letter and that I had 10 days to respond if I did not agree to the decision, which had already lapsed. I asked him if he would send the letter again and he said he would. I stayed home for three days waiting for the postman to arrive so I could sign for this letter which never came. I called again asking if they would send the letter via email and was told that they already sent it two days ago. I searched for this email which was sent but had no attachment. Called again, and finally received an email stating that the attached document was sent registered mail on 8 May.

The letter stated that the request has been denied due to the fact the extension of the Niederlassungsbewilligung can only be made for the same reason and not for a new one (i.e. education). This new rule has come into effect this year (2019). And if I wanted to apply based on educational purposes my son would have to return to Switzerland for the same duration he has been out of the country (1.5 years) before he could apply again for a Niederlassungsbewilligung.

So I sent an email requesting an extension based on medical purposes as his treatment is still on-going. They now seemed to accept the fact that the first letter was never sent as we received an email with an attached letter requesting additional information. A confirmation from the US Doctor that he is still undergoing treatment and an explanation as to why the treatment needs to be done in the US rather than in Switzerland. I received this email today, 14 June. My son needs to be here by 30 June 2019 if we do not want to lose his permit.

I feel totally whipped around. Why on earth did they request additional information on schooling if that was not even an option? Is it acceptable or even legal to keep on requesting additional information? We started this process in March and they give us just two weeks to get the required additional information together before a decision is made? And this treatment has already been approved when we first applied for the Niederlassungsbewilligung. Why do we have to prove it again? Can the Migration ampt make us change Dr.s in the middle of treatment? I feel like whatever we do it will never be enough, even though we are in the total right to request this extension.

Any help, or any advise is truly appreciated!

Whew, that's a lot to deal with, and very frustrating about the letter gone missing.

I'm trying to understand.

How old is your son, please?
If he is a minor, does he not have the same permit as you (i.e.all of you until 30th June)?

He is 16. He has a C-permit but its been put on hold for the last 1.5 years as he is been out of the country receiving medical treatment as a result of an accident in 2017.

To answer your questions about being required to supply information: yes, once a government department is called upon to provide a service, they are legitimised to ask for evidence of the applicant's position, to pose questions and demand proof as they deem necessary.

They can also set a time-frame within which you must respond, and you must. Moreover, unless they or you have set in motion one of those legal processes requiring each side to respond within 30 days, they are not obliged to reply to you as quickly as you have been required to supply all that they demanded.

I have seen this in all sorts of areas: not only questions of immigration and permits, but also about building regulations applications, rules about animals, about traffic violations, domestic violence, medical insurance matters, deceased estates, car road-worthiness, and disability.

With regard to staying out of the country because of a medical condition:

As I understand it, it is generally regarded in Switzerland as implausible that any medical treatment could not be done as well in Switzerland as abroad. Therefore it is taken that it behooves a Swiss resident who has taken ill or had an accident while abroad to get themselves (alone or through their Swiss medical insurer's repatriation service) back home to Switzerland asap, to get on with the medical treatment such that the Swiss medical insurances (and if matters turn that way the Disability Insurance) can follow what is happening while the patient is living in - or able to be discharged from hospital to - their Swiss home.

Please don't misunderstand me: I'm not presuming to judge over your son's medical condition (of course I know nothing about that!) nor the treatment he needs. I'm just providing a context.

From within that Swiss view, needing to stay abroad for medical reasons will typically be seen as a matter of limited duration, since the exceptional stay abroad is regarded as ending not when the overseas treatment is completed, but once the patient's condition has stabilised sufficiently to transport him/her back home to Switzerland.

Here are my guesses at answers to your questions.

1. Why on earth did they request additional information on schooling if that was not even an option?

Presumably, they were trying to determine whether the true reason for the boy to be abroad was medical treatment or education.

You yourself write
"Regardless of how long my son's medical treatment would last, we wanted him finishing school in the US" and that
he would need "two years to finish High School in the US."

2. Is it acceptable or even legal to keep on requesting additional information?

Yes, legal.
Yes, it is considered acceptable, reasonable and proper by the government office which is supposed to gather all the facts in order to make an informed decision.
Enough to drive the applicant into frustrated exhaustion? Unfortunately, yes.

3. We started this process in March and they give us just two weeks to get the required additional information together before a decision is made?

Yes. With regard to timelines,please see my post #32 above.

4. And this treatment has already been approved when we first applied for the Niederlassungsbewilligung. Why do we have to prove it again?

Not necessarily again, but as an ongoing matter. The questioning is about the progress and prognosis and, given that his treatment has taken longer than expected, when he will be able to be transported home to Switzerland. Please see my post #33 above.

5. Can the Migration ampt make us change Dr.s in the middle of treatment?

No. At least, only indirectly sway your decision to do so.

The Migrationsamt is concerned with deciding whether or not permit applications, and any deviations from those rules, are legitimate.

If your son's absence from Switzerland is about medical treatment, the core question is how much longer he needs to be away until he is fit to travel home to Switzerland.

You write that you submitted "confirmation from the US Doctor that he is still undergoing treatment and an explanation as to why the treatment needs to be done in the US rather than in Switzerland." I surmise that it is this last phrase that may be causing a part of the difficulty. Can you involve a Swiss doctor in the same specialist field? One who would consent to review the complete medical record, and speak to the US doctor, and then, if that is his/her own true medical opinion, to confirm that he concurs that from a specialist medical perspective changing the treatment and repatriating the boy back home to Switzerland would be medically detrimental, e.g. contra-inducated because of a, b and c, and too great a risk of complications a, b and c, etc.



If the medical reasons given cannot unequivocally justify the treatment having to be performed abroad, then I would think that your options are, indeed, to continue the treatment abroad and forgo the residence permit, or to keep the permit by bringing the child home by 30 June 2019 so as not to lose his permit, and then having the treatment continued here in Switzerland.

This puts you in a very difficult position as a parent. You're having to choose between the educational route you believe your child should be allowed to follow, his best health interests, and getting his residence status stable before he turns 18 (when he'll be an adult and would have to start his permit application all over again, in his own name, and as an unqualified non-EU may well not be granted permission to stay in Switzerland at all).

In facing such crossroads, try to work out which option brings the most negative - and most seriously irrevocable - consequences and eliminate that as the "most worsetest" option. Then work backwards from there. Good luck!

Thank you so much doropfiz, for taking the time to provide some answers, and trying to help. I am forever grateful!

For clarification, the accident happened here in Switzerland. He underwent his first operation here. After 3 months the Dr's discovered that there was an additional fracture accidentally created from the 1st operation and needed to be repaired through a 2nd surgery asap. He underwent a 2nd surgery here in Switzerland and we were told that he would possibly need an additional 2-3 more surgeries. We decided to consult the University Spital Zurich, and was told the same thing. After we had Doctors waiting to see my son, I started to conclude this was not a routine operation. I asked how many times did my sons particular doctor perform this type of operation she said never. We decided to continue treatment in the U.S. His Dr. wrote a letter agreeing with us that it would be beneficial to send our son to the US to continue his treatment. The Migration ampt received this letter and agreed and asked when he would be back. We could not say as it depended on how many surgeries he would undergo. The Migration ampt gave us until 30 June 2019 and said if he was not done by then we could ask for an extension.

So then the exchange of letters began in March. We were dealing with the same person until the last letter. I am not sure if I can reach my sons Dr. within the two-week time frame, and I am not sure if he would ever say that my son can only be treated in the US. There are doctors here in Switzerland more than willing to operate on my son, however, we wanted it done in the US because one, they have more experience dealing with this type of injury, and two of our experience here so far. It has taken longer than expected as once we arrived in the US the Dr ended up operating on my son a third time as the Titanium plate that was placed in my son during the second operation in Switzerland was not in the right position, hence prolonging his treatment by another 9 months

We decided to apply for the extension based on educational reasons as despite what happens medically, now we would like him to finish school there. He can no longer take the gymi exam as he is over 16. He can take the Fachhochmittelschule exam next March, however, we do not know if his medical treatment will be done by then and he will lose three years of schooling. His best option is to finish HS in the US which will take 2 more years and we would be done and over, and can come back here and attend University. The problem is we cannot risk losing his health insurance so we need the clearance of the Migration ampt. And why it is so hard to get is beyond me. All this uncertainty is slowly taking its toll and instead of the Migration ampt supporting us they make it harder.

However, thank you doropfiz for your time and effort to help, it makes it a little easier dealing with this.

Of course I don't have all the info and don't know you or him, so naturally can't decide for you, so this is just a flying leap or hunch.

Unless
a) travelling will be bad for him right now,
b) you're likely to be returning to the States yourself, permanently, before he turns 18, and
c) you can afford to self-fund his ongoing treatment,
bring him home to Switzerland within the deadline set by the Migrationsamt.

The Swiss education system is designed so that people who didn't take the regular route can catch up, albeit on a slightly circuitous route, but catch up they can. In this instance, arriving a little late does not mean missing the boat, nor does repeating or restructuring one's education carry any negative stigma. He can still get to university, if that's what he wants, though perhaps at 22 instead of at 19.

If, however, he loses his residence, and you need to stay here, you risk being stuck on opposite sides of the pond.

In particular, since you already know he will need more medical treatment, I'd caution against risking losing his medical insurance cover.

Being stuck far away from each other, and the money going to medical fees instead of trips to visit (and draining from the resources for other family members' projects)... that sounds dire.

Of course I may be way off the mark. If so, just click this opinion away.

How's it going, gumby? Any decisions with regard to your son?

Sorry for the delayed response. I have been consumed in writing emails back and forth with these people. His Dr in the US. provided a fantastic letter saying that it was important my son receive on-going follow up treatment and it was best to do it at a " highly sub specialized eye care environment with surgical teams that are already familiar with his unique findings." He further states that ' depending on the evolution of his disorder over time, he may require additional surgery." I sent the letter to them and requested that the extension be until Dec. 2021 via email on 24 June, as it wouldn't get to them soon enough if I sent it by post.

On 24 June, they sent me an email with an attached letter saying, as he is in after care, and there are specialized eye care institutions in Switzerland, the extension would not be granted. This was extremely frustrating as we explained the whole situation at the beginning when we first applied for this, that he would need an additional 2-3 surgeries, with a waiting period of at least 6 months in between. He is currently recovering from surgery two with our next appointment in November.

I replied to them via email explaining the whole situation again and they informed us 1 hour before the Gemeinde closed (we would have had to register him again if we didnt hear from them as he cannot risk losing his health insurance) that they agreed to extend until 30 November 2019, and if by that date the Doctor could not confirm another operation appointment then there would not be an extension granted.

I wrote back stating that I could not be 100% sure that the Doctor would know by then if he would require surgery, nor would I know 100% that he would need additional surgery. He is in the process of recovering and until the process is over, (which the Dr. can determine) we can proceed with further treatments. For the amt to say he needs to know by this date I found absurd. I am not a doctor, nor are they, and for them to tell me that there is alternative treatments here in Switzerland, and that he can be treated here with out even knowing the details of his condition is frustrating. I have a letter from a Swiss Dr, as well as his treating doctor saying why he needs to be treated in the US as well as a letter stating additional surgery is possible from his current Dr but the amt is overruling that even tho they have no medical degree.

So I am not sure how to proceed. It states in the law that he can be out of the country for up to 4 years and he has been out for 1.5 years. Why they are not granting this is beyond my comprehension especially since they allowed it from the beginning. They asked when we first applied, when would his treatment be complete and as I couldnt say, 30 June 2019 was decided on and I was told that we could always ask for an extension if need be. That was a big mistake.

They also stated as he is half Austrian he can always come back later if need be however, they just dont understand that he has to keep his medical insurance until his treatment is over and we dont know when that will be.

I now do not know what I should do. Would an attorney help? It seems that no matter what information is provided the answer is no.

Although I hear you that you, and the USA doctors, and possibly even the Swiss doctors, believe that it would be better if his treatment continued in the USA, this next part: is not the responsibility of the Swiss immigration authorities. They are about deciding who may reside in Switzerland, and ensuring that every foreigner who wishes to do so fulfills the requirements. They are not about protecting anyone's health or access to health insurance. That may sound hard, but it is the fact that their duty does not lie in this area.

As I understand it, you have now received an additional extension, a period of grace for your son, from 30th June to 30th November. While you were hoping for a more generous result, in fact having obtained these extra 5 months is already a huge achievement. Well done on that!

When you received the previous extension (the one up until 30th June), weren't you also told, then, that that would be the last chance? And now it's been extended anyway. It could be that there is still the possibility of another extension (beyond 30th November).

The condition for a further extension is that, at the latest by 30th November,
This seems to imply that if a doctor does deem it necessary and before 30th November sets the next operation date (which would probably be in December, January or February, I suppose, since one could hardly reasonably predict further ahead than that… but this is just a guess on my part, without the necessary medical knowledge), then a further extension will be granted.

If, by some date wellll before 30th November, perhaps mid-September, the USA doctors are still undecided about a next surgery, might it be a possibility for them to refer him back to their Swiss colleagues for their opinion? I don't mean just the medical records, but that he himself return to Switzerland to be examined.

It may be that by then the USA and the Swiss doctors agree that, in fact, his treatment could be continued in Switzerland after all (new competence centre, know-how transfer, specialists from the USA now working in Switzerland, etc.). If that happens, then you will have "won" in that you get your son back home, his permit is extended naturally, his medical insurance will continue safely, and all will be well, except that he will finish his schooling either through a Swiss school (with a little delay as he repeats some parts), or through an international school here (if you can afford the fees), or through some version of home-schooling/correspondence with a school in the USA. It still seems to me that the schooling aspect is less significant than that of his eyes/surgery/treatment.

If, on the other hand, the Swiss doctors examine him and then conclude that, for the specific progression of his specific condition as seen on DATE-before-30th-November, it would be foolish not to return him to the USA, (and why, exactly, both in terms of surgery and therapy, and if they document in which aspects the Swiss options are lesser than those in the USA and detail the specific competencies in the USA and why these would serve him better), I'd surmise there is a higher chance that an extension beyond 30th November would become possible.

OP, you're definitely fighting an uphill and complicated battle.

By your own admission, you want him to stay in the U.S. to finish high school. He happens to also have a complex medical condition that is being treated there, but you essentially admitted to the Swiss authorities that the medical was secondary to the schooling.

One consideration outside of the permit is how long the Swiss insurance is going to continue to pay for expensive treatment in the USA before they ask him to return to CH.

In any case, be prepared for more headaches and paperwork. To be honest, I am not sure a U.S. high school education is worth all of it especially if he plans to go to Uni here anyway. Best of luck to you and to him.