The hardship case is an exceptional provision of Swiss migration law that allows, under strict conditions, foreigners who have been residing in Switzerland for a long time without regular authorisation to obtain a residence permit. PBM Avocats accompanies the persons concerned in this complex process, which requires rigorous documentation and solid legal argumentation.
Legal Basis: Art. 30 Para. 1 Let. b FNIA/LEI
Art. 30 para. 1 let. b FNIA/LEI allows the SEM to derogate from the ordinary legal conditions to take into account the personal situation of the applicant when their situation constitutes a serious hardship case. This provision is a flexibility clause that does not create a subjective right to regularisation, but opens the possibility of an individualised examination.
The prerequisite is that the canton of domicile approves the application and submits it to the SEM with a favourable opinion. Without the canton's agreement, the Confederation cannot grant the hardship case. The cantons of Geneva and Vaud apply their own complementary criteria.
Criteria for Assessing the Hardship Case
| Criterion | Favourable Elements | Unfavourable Elements |
|---|---|---|
| Length of stay | Long and continuous stay (minimum 5-10 years) | Short or interrupted stay |
| Professional integration | Stable employment, financial independence | Unemployment, social assistance |
| Social integration | Language, associations, social network, children's schooling | Isolation, offences |
| Ties with Switzerland | School-age children, family in Switzerland | Main family abroad |
| Situation in country of origin | Severed ties, danger upon return | Maintained ties, return possible |
| Criminal record | No serious conviction | Criminal convictions |
Operation Papyrus in Geneva: An Important Precedent
Between 2017 and 2018, the canton of Geneva conducted Operation Papyrus, a collective regularisation operation for integrated undocumented persons. The criteria applied were:
- For adults without children: stay of at least 5 years in Geneva, stable employment, financial autonomy, clean criminal record, sufficient knowledge of French
- For families with school-age children: stay of at least 10 years for parents, children schooled in Switzerland for at least 5 years
- For young adults (under 25) who arrived before age 12: schooling in Switzerland for at least 5 years
More than 2,000 persons were regularised under Papyrus. The procedure involved the assistance of partner associations and lawyers in preparing the files. The Papyrus criteria continue to serve as a reference for individual applications in Geneva.
Application Procedure
- Step 1: Legal consultation to assess the chances of success and identify the documents to be gathered
- Step 2: File preparation (chronology of stay, proof of integration, family situation)
- Step 3: Filing with the cantonal authority (OCPM in Geneva, SPOP in Vaud)
- Step 4: Cantonal examination and opinion to the SEM
- Step 5: SEM decision — approval or refusal
- Step 6 (if refused): Appeal before the FAC within 30 days
The Hardship Case for Young People and Children
Children and young adults born or schooled in Switzerland benefit from special protection. The case law of the Federal Supreme Court and the FAC recognises that children who have grown up in Switzerland have very strong ties with the country and that their deportation may be unreasonable. Art. 8 ECHR (right to respect for private life) is particularly relevant for persons who have spent most of their life in Switzerland.
PBM Avocats regularly handles hardship cases in Geneva and Lausanne. Our experience allows us to quickly assess the chances of success, prepare the strongest possible file and effectively represent you before cantonal and federal authorities. For any questions about your migration situation, consult our team in immigration law.
Frequently Asked Questions About Hardship Cases in Switzerland
Who can benefit from a hardship case procedure in Switzerland?
The hardship case provided in art. 30 para. 1 let. b FNIA/LEI is primarily aimed at foreigners who have been residing irregularly in Switzerland (undocumented persons) for a sufficient number of years. It may also benefit persons whose deportation proves impossible, illegal or unreasonable. The criteria are cumulative: length of stay in Switzerland, professional and social integration, difficult personal situation in case of deportation, and absence of serious convictions. Each canton assesses these criteria independently.
How many years of residence are generally required for a hardship case?
The law does not set an express minimum duration. However, cantonal practice and SEM guidelines indicate that a stay of at least 5 to 10 years is generally required for adults. For minors and young adults (up to 25 years) born or arriving in Switzerland at a very young age, the Papyrus circular in Geneva and specific cantonal schemes may apply from a shorter duration, taking into account schooling and integration. PBM Avocats analyses the duration and quality of the stay for each file.
What is Operation Papyrus in Geneva?
Operation Papyrus was a regularisation operation conducted by the canton of Geneva between 2017 and 2018, allowing undocumented persons residing in Geneva for at least 5 years (adults) or 10 years (with school-age children) to obtain regularisation through the cantonal hardship case procedure. More than 2,000 persons were regularised. Although the official operation has ended, the Papyrus criteria continue to serve as a reference for individual cantonal applications in Geneva. The operation was praised as an example of pragmatic regularisation.
What documents need to be gathered for a hardship case application?
The hardship case file must demonstrate the duration and continuity of stay (employer certificates, successive accommodation attestations, invoices, official letters), professional integration (employment contracts, employer attestations), social integration (associations, children's schooling, language), personal situation (family ties in Switzerland, health status, situation in the country of origin), and absence of legal obstacles (criminal record). The more complete and documented the file, the better the chances of success.
What happens if the hardship case is refused?
In case of cantonal refusal, the file is transmitted to the SEM for a federal decision. If the SEM also refuses, the applicant may appeal before the Federal Administrative Court (FAC) within 30 days. The FAC examines the conformity of the decision with federal law, in particular the principle of proportionality and art. 8 ECHR. If the appeal is rejected, a deportation order may be issued. PBM Avocats accompanies applicants at all stages, including appeals, and identifies the available legal means.