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-   -   On [requesting] Permit C - Lawyer? (https://www.englishforum.ch/permits-visas-government/295482-requesting-permit-c-lawyer.html)

vistamare 29.11.2019 16:27

On [requesting] Permit C - Lawyer?
 
I have been in Switzerland for more than 7 years now. Since arriving in Switzerland in 2012, I got student-permit B that lasted until 2016. Since 2016, I have a normal-permit B. I currently reside in Bern.

Since, I have permit B for more than 5 years, I asked Bern's office responsible for permits on whether I can apply for Permit C and they said I have to wait until 2021. The reason being that the years I had student-permit B do not count. However, I had friends residing in other cantons for which the student-permit B years counted as well!

I also heard people saying that you have to be 5 years in the same canton to receiver permit C. Personally, I've changed cantons 3 times the last 7 years.


Whenever I try to figure anything out on the subject, it seems that I get contradictory information from Swiss public employees.

Therefore, I was wondering:
  • Does it make sense to hire an immigration lawyer of some kind to handle this? I'm not sure how expensive that might be, but I would rather pay ~1000CHF to a lawyer and be sure that I get correct information on whether it's possible to get a permit C or not ...
  • Has anybody had experience by using a lawyer for such matters?

roegner 29.11.2019 16:36

Re: On Permit C - Lawyer?
 
It can be expensive.


Have a look around the permit section on this forum. This was discussed and explained several times (also keep in mind the rules have changed).

Medea Fleecestealer 29.11.2019 17:15

Re: On Permit C - Lawyer?
 
Rules changed in January this year so anyone who got a C permit before then did it under the old rules.

aSwissInTheUS 29.11.2019 17:21

Re: On Permit C - Lawyer?
 
Considering we do not know your nationality, we assume you are not from a privileged country, and you are not entitled to permit C but you can only apply and hope it will be granted based on good integration (aka VINTA).

Has there is no right for early C based on good integration you cannot really force the authorities.

Nevertheless there is the SEM guidelines and handbook which outlines best practice.


https://www.sem.admin.ch/sem/de/home...sregelung.html

From section 3.5.2.1

Vorübergehende Aufenthalte werden an den ununterbrochenen Aufenthalt in den letzten fünf Jahren der Niederlassungsfrist nicht angerechnet (Ausbildung, Studium, ärztliche Behandlung, Kur, Kurzaufenthalte usw.). Aufenthalte zur Aus- oder Weiterbildung (Art. 27 AIG) werden hingegen nachträglich angerechnet, wenn die betroffene Person nach deren Beendigung während zweier Jahre ununterbrochen im Besitz einer Aufenthaltsbewilligung für einen dauerhaften Aufenthalt war (Art. 34 Abs. 5 AIG) oder der Aufenthalt mit einer Kurzaufenthaltsbewilligung einen dauerhaften Charakter hatte (z.B. durch einen unbefristeten Arbeitsvertrag oder die Behörden und der betroffene Ausländer von Anfang an vom Daueraufenthalt ausgegangen sind).

Use your B2 level German skills or https://www.deepl.com/translator

Do you fulfill all of that? If yes you might ask them why SEM Weisungen 3.5.2.1 shall not apply in your case.

PS: Please send PM with address so that I cans send you a bill and bank details for the consultation fee. It is around CHF 1000, give or take :D

NichtsBesonders 29.11.2019 18:27

Re: On Permit C - Lawyer?
 
Quote:

Originally Posted by aSwissInTheUS (Post 3125475)
Nevertheless there is the SEM guidelines and handbook which outlines best practice.

As all non-EU early C permits are subject to SEM approval, the handbook is rather outlining the boundaries of what's possible than "best practice" for the cantons.

However, there is an actual law article (Art. 34.5 AIG) stating that student B permits do count after 2 years on a non-student B permit.
Sure, there's no right to a C permit and it's a "Kann-Vorschrift" but the canton cannot refuse it just because they don't want to count a student permit. That would be in direct contradiction with federal law.

So OP should ask them why Art. 34.5 AIG doesn't apply in their case instead, not some obscure SEM guidebook (aka not a law :)).
The cantonal authorities have plenty of room to come up with a not so obviously illegal reason if they are so inclined though.
For example, there has been a case on this forum of a canton not considering a tied B permit based on a multi-year (but not permanent) contract as a "Aufenthaltsbewilligung für einen dauerhaften Aufenthalt". That'd be much harder to challenge.

vistamare 29.11.2019 22:25

Re: On Permit C - Lawyer?
 
The users in this forum are amazing. Thank you aSwissInTheUS and NichtsBesonders.

As a matter of fact, I'm an EU (Germany) citizen.
I'll have a look at the articles you sent me. They seem really relevant to my case. This was exactly type of inconsistencies I was talking about.

Thank you so much.

aSwissInTheUS 30.11.2019 01:10

Re: On Permit C - Lawyer?
 
Quote:

Originally Posted by vistamare (Post 3125521)
As a matter of fact, I'm an EU (Germany) citizen.

This changes things a bit. Not that you are an EU citizen, that is not important, but that you are a German citizen. As a German you are entitled to an C after 5 years as Switzerland has signed many many years ago, 110 years to be exact, a treaty with the German Reich (the first one, under emperor Wilhelm II) which is still valid.

It is still the same rules regarding residency, but it is no longer "can be granted" but "shall be granted" and they can no longer wiggle out as easily if you meet the requirements.

kamen 30.11.2019 08:35

I was in the exact same situation - I was studying for 4 years in Bern, then I stayed for 2 years on normal B Permit. Gemeinde told me that in Bern student years do not count. I asked if cantonal rules are above federal laws, they answered federal ones have priority. However, Gemeinde tried to talk me out of applying. I applied after all and in 10 days I got the C Permit. I am an EU (the new countries) and I am well integrated. Just go for it. It is important to have lived on normal B Permit, have a job, never have received social benefits, fluent in German (you are German one way or another), clean criminal record. That is all. Go for it.

And when you apply, quote the law number which corresponds to your situation. I wrote "Gestützt auf Artikel 34 (5) des AUG möchte die Erteilung der Niederlassungsbewilligung beantragen". You do not need a lawyer to claim something you could ask for yourself. Good luck!

Island Monkey 30.11.2019 09:47

Re: On Permit C - Lawyer?
 
Quote:

Originally Posted by aSwissInTheUS (Post 3125549)
This changes things a bit. Not that you are an EU citizen, that is not important, but that you are a German citizen. As a German you are entitled to an C after 5 years as Switzerland has signed many many years ago, 110 years to be exact, a treaty with the German Reich (the first one, under emperor Wilhelm II) which is still valid.

It is still the same rules regarding residency, but it is no longer "can be granted" but "shall be granted" and they can no longer wiggle out as easily if you meet the requirements.

Blimey! Did they have C permits 110 years ago?? :eek:

NichtsBesonders 30.11.2019 11:56

Re: On Permit C - Lawyer?
 
Quote:

Originally Posted by aSwissInTheUS (Post 3125549)
It is still the same rules regarding residency, but it is no longer "can be granted" but "shall be granted" and they can no longer wiggle out as easily if you meet the requirements.

There's a quirk. At least according to the Zurich Migrationsamt guidelines (this doc, paragraph 4.1.2), study years do not count towards the 5 years which give a German citizen an entitlement to a C permit:
Quote:

Aus den Niederlassungsvereinbarungen lässt sich nach einem ordnungsgemässen und ununterbrochenen Aufenthalt von fünf Jahren ein Anspruch auf Erteilung der Niederlassungsbewilligung ableiten. Das heisst, dass Angehörige eines Staates, mit welchem die Schweiz eine Niederlassungsvereinbarung abgeschlossen hat, die Voraussetzungen aus Ziffer 3.2. erfüllen müssen. Einen Sprachnachweis haben sie aber nicht zu erbringen. An die Fünfjahresfrist werden vorübergehende Aufenthalte wie Studien-, Praktikums- oder Kuraufenthalte nicht angerechnet.
However, it should be possible for OP to apply for an early C permit based on Art 34.5 AIG. It would be weird and unfair if the old settlement treaty between Germany and Switzerland excluded them from a less stringent provision of the general law.

amogles 30.11.2019 12:24

Re: On [requesting] Permit C - Lawyer?
 
Switzerland is not a country where you normally threaten the authorities with a lawyer over administrative matters.

Normally you can assume the authorities understand the rules and implement them fairly. If you genuinely believe they made a mistake, you make an appointment and go and discuss the matter in person. Then when you are there you stick to the facts and don't get emotional or argumentative. In my experience they always take their time and listen and won't stonewall you if your grievance is genuine and you are cooperative. Remember Switzerland is a consensus-based society. A lawyer is such a no-go and to put a not too blunt point to it, the fact that you think it is a good idea won't reflect well on your level of integration.

Jim2007 30.11.2019 16:05

Re: On [requesting] Permit C - Lawyer?
 
Quote:

Originally Posted by vistamare (Post 3125457)

Therefore, I was wondering:
  • Does it make sense to hire an immigration lawyer of some kind to handle this? I'm not sure how expensive that might be, but I would rather pay ~1000CHF to a lawyer and be sure that I get correct information on whether it's possible to get a permit C or not ...

Quote:

Originally Posted by vistamare (Post 3125457)
As a matter of fact, I'm an EU (Germany) citizen.

No sense at all, for all practical purposes there is no difference to an EU-B and a C.

Doctor Memory 02.12.2019 10:13

Re: On [requesting] Permit C - Lawyer?
 
Quote:

Originally Posted by amogles (Post 3125647)
Switzerland is not a country where you normally threaten the authorities with a lawyer over administrative matters.

Normally you can assume the authorities understand the rules and implement them fairly. If you genuinely believe they made a mistake, you make an appointment and go and discuss the matter in person. Then when you are there you stick to the facts and don't get emotional or argumentative. In my experience they always take their time and listen and won't stonewall you if your grievance is genuine and you are cooperative. Remember Switzerland is a consensus-based society. A lawyer is such a no-go and to put a not too blunt point to it, the fact that you think it is a good idea won't reflect well on your level of integration.

+1
This is a very important insight that everyone should understand, assimilate, and then act accordingly. Thanks amogles.

NichtsBesonders 03.12.2019 13:00

Re: On [requesting] Permit C - Lawyer?
 
JFYI the settlement agreement granting a right to a C permit to German citizens that is actually in force is here (SR 0.142.111.364).

It says in its Art. 5 among other things that students cannot benefit from this agreement:
Quote:

5. Angehörige des einen Staates, die sich nur aus einem seiner Natur nach vorübergehenden Grunde, z. B. zu Studien— oder Heilzwecken, in das Gebiet des anderen Staates begeben oder sich dort aufhalten, können die vorstehenden Vergünstigungen nicht in Anspruch nehmen.
The cantons and SEM interpret that by not counting years on a student permit towards the 5 years and one can see their point. So engaging a lawyer is most probably futile on legal grounds alone.

st2lemans 03.12.2019 13:14

Re: On [requesting] Permit C - Lawyer?
 
Quote:

Originally Posted by Jim2007 (Post 3125723)
No sense at all, for all practical purposes there is no difference to an EU-B and a C.

There is for taxes.

Tom

kamen 03.12.2019 17:10

Re: On [requesting] Permit C - Lawyer?
 
Quote:

Originally Posted by vistamare (Post 3125457)
I have been in Switzerland for more than 7 years now. Since arriving in Switzerland in 2012, I got student-permit B that lasted until 2016. Since 2016, I have a normal-permit B. I currently reside in Bern.

Since, I have permit B for more than 5 years, I asked Bern's office responsible for permits on whether I can apply for Permit C and they said I have to wait until 2021. The reason being that the years I had student-permit B do not count. However, I had friends residing in other cantons for which the student-permit B years counted as well!

I also heard people saying that you have to be 5 years in the same canton to receiver permit C. Personally, I've changed cantons 3 times the last 7 years.


Whenever I try to figure anything out on the subject, it seems that I get contradictory information from Swiss public employees.

Therefore, I was wondering:
  • Does it make sense to hire an immigration lawyer of some kind to handle this? I'm not sure how expensive that might be, but I would rather pay ~1000CHF to a lawyer and be sure that I get correct information on whether it's possible to get a permit C or not ...
  • Has anybody had experience by using a lawyer for such matters?

Vistamare, just read my post - I was exactly in the same situation. Do not waste time to ask the town hall, just apply for it, say under which law you are applying (Art.34 (5), explain how well integrated you feel, get together all the necessary documents. Federal law is above cantonal guidelines. No lawyer needed at all.

awanderer 11.12.2019 23:41

Re: On [requesting] Permit C - Lawyer?
 
I was in a similar situation: a study B permit, followed by 2 years on L(!) and then 2 years regular B permit.

Despite all kind "interpretations" by Migrationsamt, I was able to appeal their decision (with a specialist lawyer) and get a C permit on the basis of the 5 years total mentioned above.

Contrary to what many members of this forum assume or state, various Swiss authorities dealing with foreigners are often not proficient in interpreting the relevant laws and rely some kind of internal practice that may actually be inconsistent with the law. This is especially often the case when the law changes and new practice needs to be established. What helps is also the fact that they are dealing with a weaker party - foreigners that often do not know the relevant laws or their rights.

In my case I have seen numerous the decisions to be changed in my favour after the lawyer would send a letter explaining the case and referring to the relevant laws or general principles.

A few words about a "right" to a C permit after 5 years. There is often a misconception that this accelerated C permit is somehow at the discretion of the authorities. In fact it is not, it is just granted based on different criteria. Once these criteria are fulfilled, the authorities cannot deny it. Well they can, but this won't hold on the appeal, because no arbitrary treatment is allowed. I.e. they cannot reject one person and approve the other if both satisfy the same set of pre-defined criteria.



Quote:

Originally Posted by vistamare (Post 3125457)
I have been in Switzerland for more than 7 years now. Since arriving in Switzerland in 2012, I got student-permit B that lasted until 2016. Since 2016, I have a normal-permit B. I currently reside in Bern.

Since, I have permit B for more than 5 years, I asked Bern's office responsible for permits on whether I can apply for Permit C and they said I have to wait until 2021. The reason being that the years I had student-permit B do not count. However, I had friends residing in other cantons for which the student-permit B years counted as well!

I also heard people saying that you have to be 5 years in the same canton to receiver permit C. Personally, I've changed cantons 3 times the last 7 years.


Whenever I try to figure anything out on the subject, it seems that I get contradictory information from Swiss public employees.

Therefore, I was wondering:
  • Does it make sense to hire an immigration lawyer of some kind to handle this? I'm not sure how expensive that might be, but I would rather pay ~1000CHF to a lawyer and be sure that I get correct information on whether it's possible to get a permit C or not ...
  • Has anybody had experience by using a lawyer for such matters?


bowlie 12.12.2019 08:19

Re: On [requesting] Permit C - Lawyer?
 
Did I miss something? The OP has said s/he hasn’t lived 5 years in the Canton s/he is applying in. Isn’t that one of the basic requirements?

Medea Fleecestealer 12.12.2019 08:55

Re: On [requesting] Permit C - Lawyer?
 
Quote:

Originally Posted by bowlie (Post 3129139)
Did I miss something? The OP has said s/he hasn’t lived 5 years in the Canton s/he is applying in. Isn’t that one of the basic requirements?

Not for a C as far as I know. You just have to have been resident in Switzerland for 5 years. Cantonal residency requirements apply for citizenship applications.

vistamare 15.05.2020 14:22

Re: On [requesting] Permit C - Lawyer?
 
I'm writing this reply as a reference for people that have the same issue and as a thank you to people that helped me.

So, after following the suggestions of @aSwissInTheUS, @NichtsBesonders, @kamen I asked the authorities why "Art. 34.5 AIG" does not apply to me.
It took them a few days to "search it" and afterwards they told me I could apply after all. I applied and eventually got my Permit C!
So thank you very much guys!

Also, I would like to note that I've been living in this canton for about 2 years. So, whether or not you changed a canton in the last 5 years does not seem to play a role. At least in my case.


Regarding @amogles comment
Quote:

Switzerland is not a country where you normally threaten the authorities with a lawyer over administrative matters.
. I never suggested that my goal was to "threaten" the authorities. The reason for getting a lawyer was to have someone on your side that knows the laws and can help you deal with the authorities.
By the way, it seems you always had good experience with the authorities and that's nice. But please do not assume that every gets the same behavior in return. I've heard stories from close friends about inappropriate comments, as well as stories where a lawyer was indeed needed to "threaten" the personell to do their job right, although this was in regards to unemployment benefits.

In hindsight and unfortunately in my case, the authorities did not know how to do their job properly. I really do not think it's my job to ask around and in forums and read laws in order to figure out if the authorities are genuinely answering my questions.
Don't the authorities know that student years indeed count?

I really want to believe Hanlon's razor "Never attribute to malice that which is adequately explained by stupidity." in this case, but it is slightly difficult.
Already in this thread here, there is another person (@kamen) where initially the told her that they do not count, to later change their mind.


To conclude, if the authorities tell you, you cannot apply for a permit C, maybe you can, maybe you cannot. The only person that can really figure out for certain would probably be a lawyer. So after exhausting all possible venues and you still believe you could apply, I would consider asking a lawyer his or her opinion.

Cheers and stay healthy! :msngrin:


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