D visa for non-EU student

Visas, Permits, Passports and Naturalization
1
I am based in South-east Asia and my student visa application was submitted on June 1st,2022 to the local Swiss Embassy, complete in all respects. I hold an admission to a master's program at a University based in Zurich. Additionally, I am more than 30 years old and have a previous masters in a different field from the US. It is 15 weeks and the Zurich Migration Office(ZMO) has not decided on my case.

Around 20th July the ZMO wrote to me stating they "intend' to reject my visa due to the following:

1. visas not generally issued for those above 30 for bachelor programs

2. i have been assigned some bachelor modules by the admitting school in zurich so my preparation and langauge proficiency is in question

3. Given my work experience there is no requirement for a further masters degree

All these points were vigorously contested in my appeal letter sent to them in the first few days of August. I have indicated language profiency established by high TOEFL scores, and that all bachelor modules i am required to complete are taught in English by the admitting school in Zurich. Furthermore, I am changing streams to a specialized engineering disciple for which further training is required for career progress. I also cited a document from the Federal government of Switzerland that states the practice of rejecting applicants above 30 is in fact discrimatory. The International Student advisor from the school in Zurich indicated to me that I put forward a strong case and might get the visa.

Since August and all of September , I have repeatedly called and emailed the ZMO, and so has the International student advisor. The ZMO on its part was stonewalling all through August indicating heavy applicant volume, but, in the last week of August indicated that they are reviewing my appeal and supplementary documents. (There are about 8 email exchanges since August with the ZMO which essentially just say :"please have patience")

To believe the ZMO perhaps does not have the legal grounds to reject my visa application so they intend to "run the clock out on me". Either grant me the visa post Sept 19 or cite class having already started and summarily reject my application.

I had other admissions to good programs across the UK and Europe, but, chose Zurich as I felt it was the best program. I have not been able to secure accomodation in Zurich on account of this interminable delay which will likely adversely impact my schoolwork, if by some miracle the visa is granted, and I do end up going. If i am unable to join, my admission becomes void and I have to reapply.

I gave notice at work in order to pursue this opportunity, and the entire episode has caused me great anxiety. The fact that even today I do not have any closure to this episode makes me contemplate suing the ZMO. Are they not bound my any rules to respond in a timely manner ? I would greatly appreciate any advice on my options at this stage? 12 weeks is the maximum that is indicated on official websites and embassy communications.

Other students from my current city who are headed to the same program applied after me, but all received their decisions by mid-July and are now in Zurich.

2
Seeing that you already have a degree, the regulation allows for students who do not yet have a degree or are not over 30 to profit from the universities in Switzerland. Saying that it is a discrimination clearly does not help, even you might be correct.

3

I think it’s a common practice. Here is an example of a person who wasn’t able to study in CH because she already had a job back in her country (she wasn’t even 30 years old) :

https://odae-romand.ch/fiche/une-jeu…des-en-suisse/

If you already have a job in your home country, they consider that your studies are “not necessary”, and they usually reject the visa

4
OMG! That was not smart.

Discrimination is a crime in the Swiss Criminal Code, so never use it in written communication unless you've gotten confirmation from a lawyer first. It's OKish to fling around the word discrimination in verbal communication, anyway it's risky because people can become defensive and communication is interrupted.

One feature of Switzerland is that there's no right to tertiary education (bachelor/masters/doctorate). Children take tests, are selected and then put in educational paths according to their aptitudes and only around 10% of children attend the university. Locally, few people see this as discrimination, it's just the "system". From my cynical and foreigner point of view, rejecting applicants is a feature of Swiss educational system.

Hopefully, the communication with Migration Office is not broken and you can continue to defend your case.

I'd have taken that as a suggestion to get in contact with a professor from the program, and asking this person to write a letter to defend your case by explaining the story about specialized engineering and changing career path.

If some of your colleagues are already in ZH, they can contact more easily a professor to get this done.

5

To clarify i quoted verbatim from a Staatssekretariat für Migration SEM document available on on the web :

“The residence permit for study purposes may not be refused because of the age of the candidate. The practice, according to which no residence permit for study purposes can be issued to foreigners over the age of 30, violates the prohibition of discrimination in Article 8 Paragraph 2 BV (BGE 147 I 89).” (pp. 72, Weisungen und Erläuterungen I. Ausländerbereich (Weisungen AIG))

Link to the document: https://www.sem.admin.ch/dam/sem/de/…ngen-aug-d.pdf

I also believe it is very unlikely that a professor will spend his/her time writing a letter for a Masters student who isn’t already in Zurich, they might do so for an incoming PhD entrant. Regardless, I was only given a couple of weeks to respond and i don’t think i could have managed a letter or support from a professor, or, even the relevant department in that timeframe.

To clarify, i do not consider myself “entitled” to a visa - if ZMO has valid grounds to reject me they should have done so in August and spared me the agonizing wait.

What i would like to know is if they are legally bound to decide upon my visa in a timely manner i.e. before that start date of the program, given that the application was certainly well within time, or, can they just keep me waiting forever ?

All i want from them is a decision.

6
You have heard of the war going on in Ukraine and that there are many refugees?

That and the previous delays due to Covid cause delays.

Agonizing?

7

Axa, thanks for your comments. Do you have any suggestions what i could do at this stage given that i only have 4 days or so till classes start. Whether the Migration Office decides to grant me a visa or denies me a visa after that will have little consequence as my admission will be withdrawn. I would have to reapply and go through selection at the school and the visa procedure all over again.

If i were to write to the canton and indicate that since they are unwilling to make a final determination i will sue them, is that likely to get them to decide ?

Do you know any good sources where i could get free legal advice as to what my rights are in this case - if i am required to be informed of a decision within the 12 week timeframe.

Generally speaking if a visa is granted late and the student is unable to join the admitting school in Switzerland, what recourse is available to the student?

8
Threatening to sue is unlikely to help you in any way. They don't have an obligation to grant you a permit at all. It does suck that they're just taking their sweet time. I wouldn't speculate on the reasons or intentions behind the delay. Don't assume they think you'll lose your spot and that's why they're slow. In many cases the student wouldn't lose their spot. They're probably overwhelmed with applications, and also since you appealed it might need to be reviewed by the SEM before cantonal approbation or denial.

I would say what you can do at this time is talk to your university and see if they might accept you missing the first days or couple weeks of class without losing your spot (that happens all the time, for a variety of reasons. I had a pre-existing professional engagement in my home country during the first week of my master's, they didn't give me any trouble for coming a week late), or if they might exceptionally grant you a deferral to start next semester if the wait ends up being too long. Your university may also have some leverage with the ZMO. Usually the admin or HR person in charge of securing residence permits for faculty and staff will know people at the ZMO and be in contact with them regularly, and they might be able to help.

9
4 days is a short period. If you're going to get any help, it's from the school since they're the only ones with some incentive to help. They reserved a position for you, and if you don't arrive and register, they'll miss revenue.

No, lawsuit is not the way unless you're willing and totally determined to pay 160+ CHF per hour for the lawyer.

Culture is a bit different here, a potential lawsuit is not used for negotiation leverage. Unless you have already consulted with a lawyer, the lawyer assessed the situation and is convinced there's potential, then is possible to use the lawsuit word. People will just laugh if a lawsuit is mentioned without a strong founding.

Free legal advice does not exist. There is legal insurance that helps to cover the costs. Also the Swiss Bar association offers legal advice at reduced price but it's 15-30 min consultation but you need to show up and talk in person.

10
Hey. I read the whole thread and I want to say that your whole strategy and attitude towards Swiss visa consulate seems a bit too pressing.

I have a similar story, I'm older than 30 and applied for a Bachelor, though, I've never had degrees before.

I applied in April, and in May I got a letter from kanton authorities that something is not right with my financial documents, I re-sent them to migration office and then just waited until August (almost 15 weeks). The maximum that's written everywhere -- it's just an approximate waiting time, nothing more than that. There aren't legal grounds to sue anyone -- you may open Swiss laws, it's open, I've never seen there any particular deadlines.

Speaking about you mentioning age discrimination -- it's just absurd. Firstly, Kanton Zurich doesn't apply that rule anyway (you might have known that if you've checked Zurich laws). Secondly, there are similar cases in Swiss courts when it was proven that if there are similar programms anywhere in Europe, Swiss authorities could interpret your decision to study in Switzerland as a desire to stay in the country. Because there are no age limits in other countries in the EU, Swiss authorities believe that if you want to study in particular programm, you need to prove why you can't find it in other countries (your suing them and referring to court decisions doesn't interest them much).

What helped in my case, though, is simply to write to Embassy in my country without direct interaction with immigration office in Switzerland, they answered me the same day and I finally got the visa.

But I agree with previous commentators, I think you expect TOO much from Swiss authorities, they don't need to prove you anything, if you don't think they're right, there are a lot of other programmes in Europe.

Try contacting Embassy in your country, hope it helps.