Hardship cases

If you have lived in Switzerland for a long time without a valid permit, or on an N or F permit, you may be able to get a residence permit as a serious personal hardship case, even if you do not meet the normal conditions (Art. 30 para. 1 let. b FNIA). It is not a right: the canton decides at its discretion and the State Secretariat for Migration (SEM) must approve. Applying means telling the authorities everything, including any unlawful stay, so talk to a specialist advice centre or a lawyer before you do anything.

In short

• No right: the canton may grant a permit; the SEM must agree.
• Who: mainly undocumented people living here for a long time, some N and F holders, and third-country nationals whose permit is ending in very difficult circumstances. Not EU/EFTA nationals.
• What counts: integration, respect for the law, family and children's schooling, finances, length of stay, health and the chance of rebuilding a life in your home country (Art. 31 OASA).
• Time: usually 6 to 24 months.
• Risk: a refused application can lead to removal. Get advice first.

Who can apply

• people with no current permit who have lived in Switzerland for a long time (undocumented migrants);
• people with an F permit (provisional admission) who are very well integrated, who can move from F to B on hardship grounds (Art. 84 para. 5 FNIA with Art. 30 FNIA);
• third-country nationals whose permit is ending or has ended, in particularly difficult circumstances.

EU/EFTA nationals are not covered by Art. 30, because their rights come from the Agreement on the Free Movement of Persons.

What the authorities look at

Art. 31 of the Ordinance on Admission, Residence and Gainful Employment (OASA, SR 142.201) lists the criteria:

1. Integration: language (at least A2, often B1 in practice), work history, social ties, children at school.
2. Respect for the law: no significant criminal record, no debts that point to problems in how you live.
3. Family: in particular when your children started school and how long they have attended.
4. Finances: your situation and your willingness to work or train.
5. Length of stay in Switzerland.
6. Health.
7. Reintegration: whether you could rebuild a life in your home country.

The list is not complete: the authorities weigh everything for and against your case.

How cantons differ

• Geneva: thorough examination. Operation Papyrus (2017 to 2018) regularised undocumented migrants, and its criteria still shape practice: long residence, work, children at school, no criminal record, financial independence.
• Vaud: recognises relatively many cases, especially families with school-age children.
• Zurich: generally stricter, focused on integration and finances; long residence alone is not enough.
• Bern: a thorough look at integration.
• Ticino: its own practice, focused on length of stay and family ties.
• Other German-speaking cantons: generally stricter than French-speaking Switzerland.

The procedure

1. Build your file: proof of residence, payslips, rental agreement, school certificates, language certificates, criminal record extract, debt enforcement extract, AHV (old-age insurance) extract, and letters of support from your employer, school, church or neighbours.
2. Submit it to the cantonal migration office, yourself or through a lawyer.
3. The canton reviews it: it may interview you and ask for opinions, for example from the social welfare office, the school or the AHV office.
4. The canton recommends: if its view is positive, it sends the file to the SEM with a recommendation.
5. The SEM decides whether to approve. If it does, the canton issues the permit, usually a B.

This usually takes 6 to 24 months.

The risk of applying

You must disclose everything to the migration authorities, including any unlawful stay. If the application is refused, you may be removed. So:

• Get advice first from a specialist NGO or a lawyer, before any contact with the authorities.
• Ask them to assess your chances honestly; this page cannot do that.
• Complete your file before submitting. An incomplete hardship file is almost always refused.

Special situations

• Rejected asylum seekers not removed: after several years here you can apply as a hardship case. Art. 14 para. 2 of the Asylum Act (AsylA) gives cantons a special route.
• Families with school-age children: the UN Convention on the Rights of the Child and Art. 11 of the Federal Constitution give children special protection. Where children have attended Swiss schools for several years, several cantons set a lower bar in practice.
• Health problems: a serious need for treatment that is not available in your home country can be an important factor. You need medical certificates and detailed reports.
• Victims of human trafficking: a separate basis applies (Art. 30 para. 1 let. e FNIA), not the general hardship rule. FIZ (Women's Information Centre), Antenna MayDay (TI) and CSP (VD) give specialist advice.

For representation before the authorities or an appeal against a refusal, you need a lawyer on the cantonal bar register.

Where to get advice

All advise undocumented migrants.