Understanding the "Guarantee of Departure" for Temporary Stays in Switzerland

When planning a temporary stay in Switzerland, whether for studies, tourism, or other purposes, it's crucial to understand a key legal requirement: the guarantee that you will leave Switzerland after your authorised stay concludes. This condition is a cornerstone of Swiss migration law for non-permanent residents. This article aims to shed light on its origins, application, and the criteria Swiss authorities consider, particularly in light of current international events.

Origin and Legal Foundation

The requirement to guarantee departure is rooted in Article 5, paragraph 2 of the Federal Act on Foreign Nationals and Integration (Foreign Nationals and Integration Act, FNIA). This provision states that if a person intends a temporary stay, they must provide assurance that they will leave Switzerland upon its completion. Stays for educational or training purposes, such as university studies, are explicitly considered temporary under Swiss Federal Court jurisprudence.

This legal principle is not solely a Swiss construct; it also aligns with Schengen regulations, which give "particular attention" to assessing an applicant's "will to leave the territory of the Member States before the expiry date of the requested visa". As Switzerland is part of the Schengen area, its national legislation integrates these broader European norms.

When is the "Guarantee of Departure" Applicable?

This condition applies to various types of temporary stays in Switzerland, not just studies. Essentially, if your purpose for being in Switzerland is not permanent residency, you will be subject to this requirement. This includes:

• Study and training visas: As seen in a recent case involving a young Russian national, this is a primary area where this condition is rigorously applied.

• Tourist visas: For short visits, applicants must also demonstrate their intention to return to their home country.

• Other temporary permits: Any stay exceeding 90 days that is temporary in nature falls under this requirement.

Criteria and Examples Considered by the Authorities

When evaluating whether an applicant provides a sufficient guarantee of departure, Swiss authorities conduct a comprehensive assessment. This involves examining both the profile of the country of origin and the individual profile of the applicant.

1. Profile of the Country of Origin: Authorities consider the general politico-socio-economic situation of the country of residence. Factors such as political instability, poverty, or high unemployment rates can classify a country as "at risk" for non-return.

2. Applicant's Personal Profile (Socio-economic Situation): This is where the individual

circumstances become critical. The aim is to ascertain the applicant's socio-economic stability and ties to their home country. Key criteria include:

• Family and personal ties in the country of residence (e.g., spouse, children, extended family).

• Professional situation (e.g., employment, salary level, self-employment, pension) and the regularity of income.

• Social status (e.g., holding public office, representing an NGO, a high-status profession like lawyer, doctor, or university professor).

• Property ownership (e.g., owning a house or other real estate).

• Previous travel history: Adherence to visa terms during prior stays in the Schengen area or other countries is an important indicator.

Examples from Jurisprudence:

• Ukrainian national: A Ukrainian woman invited by her son-in-law was denied a Schengen visa, despite having family ties and property in Ukraine. The Federal Administrative Court (TAF) noted the significant difference in living standards between Ukraine and Switzerland, and expressed concern that her husband might join her later, implying an intention for permanent stay.

• Cameroonian national: In contrast, a single Cameroonian woman applying for a one-month tourist visa, working as a secretary, saw her appeal against a refusal granted. Despite the risk of non-return due to economic disparities, the TAF considered her responsibilities for siblings' education, administration of inherited land, and a salary significantly above the national average as strong indicators of her intention to return. Her past adherence to visa terms was also a factor.

The Specific Case of Russian Nationals and Sanctions

The current geopolitical climate significantly impacts how applications from Russian nationals are assessed. Due to the war against Ukraine and Western sanctions, the situation in Russia is considered unpredictable, and there is a recognised risk of non-return for visitors from Russia. Swiss authorities have noted that international sanctions have prompted primarily young and well-educated adults to leave Russia and seek settlement in the Schengen area or other third states. This situation, according to the authorities, makes a guarantee of return "very doubtful".

However, Article 5, paragraph 2 of the FNIA also dictates that the socio-economic situation of the individual applicant must be thoroughly examined for a comprehensive decision, even if the country of origin presents a general risk of non-return. This means a blanket refusal solely based on nationality or the country's general situation is generally not permissible.

Conclusion: Beyond Sanctions – The Power of Individual Proof

While the current situation in Russia and international sanctions pose legitimate concerns for Swiss migration authorities, it is crucial to understand that the mere fact of sanctions or an unpredictable situation in a country should not, by itself, be considered sufficient proof that an individual cannot guarantee their return.

Swiss law, particularly Article 5, paragraph 2 FNIA, specifically requires a detailed examination of the applicant's individual socio-economic situation. This means that individuals from sanctioned countries still have the opportunity to present compelling evidence of their strong ties to their home country. By meticulously documenting their stable financial situation, significant family connections, established professional prospects, property ownership, and a history of complying with visa regulations, applicants can demonstrate a credible intention to return. Such detailed individual proof can and should carry significant weight, ensuring that decisions are made on a case-by-case basis rather than solely on broad country-specific assumptions.