Date of C permit eligibility

Visas, Permits, Passports and Naturalization
1
Context:

-I am Canadian, so eligible for regular C permit after 5 years (but need to request it, it's not automatically considered by migration, I've been told)

-I had a student B permit starting in Sept. 2017

-My spouse got a job and moved to Switzerland with an approved start date 1 May 2021.

-I deregistered from BS and registered in VS in June 2021, applying for family reunification. We both got the new permits with issue dates in late July or early August 2021, but renewal dates are aligned to my spouse's approved arrival date, so renewal is end of April.

-Been on family reunification since then, always with my spouse having a permanent contract, so qualifying as a "long-term stay".

Under the directives, student years count for C permit when followed by two years of "long-term" stay. My question is when do those 2 years start in my case, and therefore when I should apply for the C permit.

Does the clock on those two years start with my registering in VS with the application for canton change and family reunification, or with the issue date of my first non-student permit? That would mean I'm ellibigle to apply either in June or July/August. Or should I just apply at my normal renewal date (end of April), knowing that I'll be eligible by the time our renewals are processed?

Has anyone been in a similar situation?

2

Student years count retroactively for C permit if you graduated from a Bachelor/Master/Doctorate program of a public higher education institution and have been in possession of a durable B permit immediately after graduating for 2 years at least.

Assuming you graduated per above in June 2021 then student years will count and you will be eligible to apply for C permit as a Canadian in June 2023 (student B years fully credited and 2 years durable B permit immediately after graduating).

If you haven’t finished your studies yet and have simply switched from student B to family reunification B then your C permit eligibility date as a Canadian is June 2021 + 5 years = June 2026.

Art. 34 Abs. 5 AIG
https://www.fedlex.admin.ch/eli/cc/2007/758/de#art_34

3

After a closer look and your post here:

https://www.englishforum.ch/3349809-post1.html

Both you and your spouse seem to have been issued L permits, which is considered to be a short-term temporary permit.

Earliest possible deadline for C permit eligibility is therefore first time you and your spouse are issued with a B permit + 5 years.

However, based on SEM interpretation published on their guidelines available online and depending on specific cantonal practice, your years on an L permit may count towards the normal C permit eligibility deadline of 5 years for Canadians if your spouse’s work contract is indefinite and the migration authority and foreigner assumed their stay would be durable since the beginning (exact wording in SEM guidelines point 3.5.3.2). VS authorities would need strong convicing to bump a dependent spouse only (and not main permit holder as well) from L to C directly.

PS next time directly mention you have L permits, would make answering your questions much easier.

4
Yes, I'm aware of the situation with the L permit, that's why I specified that my spouse has an indefinite/permanent work contract and that it should therefore qualify as "long-term"/durable – the reason we have an L is because Valais explicitly requires 24 months of L before giving a B. I'm hoping they count those two years, we'll see.

I was told by the immigration officer last year that a change to C permit would be for the most part out of their hands and is decided directly by the SEM.

Regarding graduation date vs change of status, I actually graduated from my Master's in 2019, the next two years were "post-graduate continuing studies" (Ergänzungsstudium) that didn't lead to a degree or diploma (or didn't involve any form of final evaluation), for which there wasn't a clear end date. I de-registered and applied for change and canton and family reunification in early June 2021, but the permit took a couple months to be issued.

5

Thanks for clarifying and sharing the full picture.

I see two problems:

  1. You didn’t hold a durable B permit immediately after formal graduation (your Masters in this case) and so are not eligible to have your student B permit years credited towards your overall C permit year requirement per Art. 34 Abs. 5 AIG
  2. You changed status to family regroupement, your status is now tied to your spouse’s, in this case family regroupement L permit. For you to be eligible to apply for C permit your spouse must be eligible as well.

In light of the above earliest possible date for C permit application is:

June 2026 (2xL + 3xB, together with your spouse) assuming you successfully obtain a non-EU B permit once your second non-EU L permit comes up for renewal and assuming both your years on L count towards C; otherwise

June 2028 (2xL + 5xB) assuming you successfully obtain a non-EU B permit once your second non-EU L permit comes up for renewal

Anything sent to be examined by SEM necessarily needs positive pre-approval of canton.

6
The rule says years as a student can count if a B permit (clarified as possibly including L permits with permanent contract in the directives) is held for two years after the end of the student stay , not after graduation. Doing more studies doesn't make student years not count. I had a student B permit the entire time, from 2017 to 2021.

My question is not with regards to what years count or not. I know what the rules say in that respect, and immigration has previously indicated that as far as they can say, they think I should be eligible this year, but I'm aware it might very well be declined as it's all dependent on how the rules are interpreted. We'll see.

My question is about which date started the clock or in other words when this year I can plan to apply; end of April (normal renewal date), early June (when I registered in the canton under my application for change of canton and reunification) or late July (when my first non-student permit was actually issued).

7

No, the letter of the law clearly says once studies are completed , in your case the moment you obtained the required number of ECTS to graduate from your Master degree.

Art. 34. Abs. 5 AIG
The spirit of the law per the parliamentary initiative submitted by ex-Nationalrat/Conseil national member Jacques Neyrinck CVP/PDC VD is to facilitate access of foreign graduates of Swiss universities to find a job and remain long-term in Switzerland to avoid a brain drain to other competing economies, for which studies were at the cost of the Swiss tax payer.

Your student years do not count towards C because you did not hold a durable B permit after graduation, you continued holding a student B permit and subsequently stopped studying.

Regardless of the above moot point, as already mentioned, your new status as a trailing spouse under family regroupment L permit links your status to your spouse’s. You cannot independently apply for a C permit (even if you had the sufficient number of valid years to be credited) without the spouse.

Hope that clarifies.

Do you have an official decision issued by the migration authority communicating it to you with a formal deadline to appeal? Government workers sometimes say things hastily to get people off their back.

8
Valais is probably the worst canton for not bending the permit rules. If the rules can be taken in any way to not give a B or C, then they will not give a B or C. Big fans of the L in Valais!!

9
You just quoted precisely what I wrote. The English version is maybe a bit ambiguous, but the French absolutely isn't. "Les séjours effectués à des fins de formation ou de formation continue sont pris en compte lorsque, une fois ceux-ci achevés [...]". It says nothing about graduation or end of studies, it refers to the end of the stays . Otherwise it would be "une fois celles-ci achevées". It also explicitly includes continuing studies ("Weiterbildung", "formation continue", "formazione continua"), which is precisely what I was enrolled in from 2019 to 2021, and what I finished when I changed permits.

The directives (ch. 6.4.3) also explicitly say that holders of family reunification permits are subject to the regular general conditions for granting the C permit listed in Art. 34/ch. 3.5 (unless they can get it earlier through their spouse themselves having a C permit for 5 years under Art. 43, al. 5). Nothing is said anywhere about not being able to get C permit unless the main permit holder also has C permit. Granted, that's also where I suspect I might run into problems, but we'll see. No, I don't have a written communication, it was a phone call (they're notorious for not answering emails). I also don't think they were trying to get me off their back, it was a scheduled phone call to discuss several questions concerning myself and people I employ. I'm not taking what they said for granted, and I know there's a decent chance I won't get it.

Again, though, this is not what I'm asking about. My question is not whether or not I'm eligible this year (I'm going to be applying no matter what, and we'll see), but rather, assuming I'm eligible, what date I can plan on applying.

10
Regarding the completion of studies: you cannot interpret law by cutting up phrases and focusing only on some words and grammar, you must interpret the entire phrase. It is obvious in all 3 national languages ‘completed’ refers to completing studies (i.e. arriving to the end of a degree program and graduating). For more details on the spirit of the law I refer you to my previous post.

Since you are no longer on a student permit:

What you mention regarding the family regroupement permit is not correct, you are quoting from the section concerning family members of B permit holders .

In the section of family members of L permit holders (point 6.5, your case) there is no mention of the governance of obtaining a C permit as it is considered to be short-term, temporary stay which does not lead to a C permit (at least directly).

As a reference point only, family regroupement B permit holders obtained via marriage to Swiss citizens cannot have their student years credited for C permit, point 6.2.4.1 of the guidance document:

Difficult to argue family members of L permit holders can have their student years credited for C when spouses of Swiss citizens cannot.

To answer your question you can apply for anything you want at any time.

11
It could be worse, at one time most 3rd country nationals, including Canadians required 10 years with a B before being eligible for a C. Now it’s a real mix.

12
Frankly now it's much worse for people on student B permits.

The old rules when I arrived were 12 years and then apply for naturalization.

I'm here (and many others) 11+ years, still student B-permit and still impossible to get C permit with no way out ...

13
Regarding your last bit about student years not counting towards C permit for spouses of Swiss citizens, you are misunderstanding that. This refers to attaining C permit "under art. 42 al. 3", which is a preferential treatment giving right to C permit after 5 years of marriage and living together (as opposed to the normal 10, and as opposed to other circumstances where a C permit may be granted , but not by right), where previous stays before the marriage don't count towards those 5 years. The spouse of a Swiss citizen can still get a C permit under the normal general conditions if they fulfill the conditions earlier than under this preferential treatment. For example, if someone has lived here 8 years including study years and could get C in 2 years, marrying a Swiss person and getting family reunification doesn't reset the clock. They can still get the C permit after a regular stay of 10 years under the normal conditions, they just can't get it under the preferential treatment. That is clear in the jurisprudence (ATC 122 || 145).

Regarding your first point, well, no, I'm sorry, it very obviously refers to the stay. That's what the sentence says. Any Italian or French speaker reading the version in those languages (the English version has no force of law, the national language versions do) would understand it that way, because it's the only way it works grammatically as a sentence.

Art 34, al. 5

"Completion" is also only in the English translation which again has no force of law. In all national languages it's only "once they are ended". Nowhere in the law or directives does it say anything about graduation with regards to this. It simply doesn't. You seem to be conflating the counting of student years towards C with the relaxed conditions to access the workplace after graduation. Those are completely different things, although of course ultimately connected.

I know there is no explicit option mentioned to jump from L to C, that's why I repeatedly said I know there's a good chance I don't get it now. There is however this ambiguous addition in the directives

Directives 3.5.2.1

That does sound like you can jump from L to C if the L is considered long-term. Which you've pointed out yourself in your first comment. But of course the fact that it's family reunification complicates things and makes it maybe likely I don't get the C permit. Again, and I don't know how many times I have to repeat it, I know this! That isn't the question I'm asking!!

We are in any case getting at least a B permit at our next renewal (that's what the cantonal rules are, explicitly. With a permanent, indefinite contract you get L for 24 months, then B. That's both written in the policy and has been said to us by everyone we talked to at both the Commune and migration office). So maybe they make me go through hoops and give me a B only so that I can then immediately reapply for C, I don't know.

Maybe I should just not bother applying for the C permit, and apply the day I get my B (which should be around the later of the three dates I previously mentioned).

14
I think you should get the B, then try applying for a C. C permit decisions can take forever. If you apply when your L is expiring, you may be left with out a physical valid permit for months, making life more complicated (travel etc). At least if you have your B in hand, waiting for a C approval will not be as problematic.

15
Again as mentioned multiple times, you cannot just base yourself on a deconstructed version of the letter of the law, you need to take into consideration the will of the legislator and the spirit of the law, which is to facilitate access and integration of foreign graduates and not to open the door for abuse and allow foreign students secure a long-term right to stay via marriage after dropping out from studies (in an extreme case). In all 3 national languages (I never mentioned English, don't know why you keep bringing it up), the phrase read as a whole implies there was a culmination or end to the studies (i.e. the initial goal of the stay per Art. 27 AIG) which is typically the award of a diploma and not a withdrawal/change of path.

The only thing that was confirmed in this court case is what I mentioned earlier: spouses of Swiss citizens obtain a C permit after 5 years of common marriage ( no credit of previous stays ) and do not have a choice to postpone or anticipate C permit eligibility, per point 3.4 of SEM guidelines:

It's not ambiguous whatsoever, multiple people, including on this forum, have benefited from this addition: they graduated from a Swiss university, found a job with an open-ended contract (some were lucky to have received a B permit directly, others less lucky received L permits) and successfully received their C permits 2 years after the end of their studies (read graduation).

In your case, you did not obtain an L permit through your own right by securing a job with an open-ended contract immediately after your studies, you changed status to family regroupement i.e. be dependent on someone with a non-EU L permit long after graduating from your Masters whilst still on a student B permit.

To manage expectations, a transfer from non-EU L permit to non-EU B permit (untied) needs to go through the labor market test again, same as when your spouse initially arrived. Typically everything goes as planned but I would be cautious to rely on future decisions one does not have full control over.

16
Look, I'm gonna stop arguing with you on the reading of the law. It's entirely possibly that we're both right, that the phrase does refer to the "end of the stay" and not to "successful completion of the studies", yet that a court would rule that the spirit of the law and intent of the legislator is for graduates. This is moot in my case anyway.

I didn't "drop out" or "change paths", I completed my masters and then enrolled into further specialized studies in the same field, like is very common, and again specifically mentioned in the law as eligible to count , and completed those continuing studies too.

I don't know why you keep trying to convince me that family reunification might make it not count, I know!!!

Regarding spouses of Swiss citizens, which is anyway completely irrelevant to the discussion here, if you read the whole ruling in question, and don't just "base yourself on a deconstructed version", you'd see that the court went out of its way to acknowledge that while the years prior to marriage don't count towards the 5-year preferential treatment, the plaintiff's entire stay duration would have counted towards a regular C permit application (however in that case that was moot because the plaintiff hadn't reached 10 years and was being denied a B permit extension).

Thank you Island Monkey for your advise.

17

Putting this to bed once and for all, directly from VD migration authority website (a canton with many higher education institutions):

Les séjours temporaires effectués notamment à des fins de formation ou de perfectionnement (art. 27 LEI) ne sont pas pris en compte dans le séjour ininterrompu de 5 ans, sauf si, une fois ceux-ci achevés ( avec obtention du diplôme) , la personne a été en possession d’une autorisation de séjour durable pendant deux ans sans interruption.

https://www.vd.ch/themes/population/…tablissement-c

18
Sure! As I said, doesn't apply to my case as I did finish both courses of studies (and I just checked again and I did receive a "certificate of completion of studies" for my Ergänzungsstudium , I just never paid attention to it since it's pretty worthless in itself, the value was in the studies, not in the paper). But good to have that here in case someone in that situation wonders.

19
The determining factor is whether your further studies culminated in a degree/diploma/title, not a certificate of attendance.

20
This is a very interesting thread and I believe similar situations have not been quite discussed in this forum. Sorry that the OP has to be involved in the funny argument with yet another legend that seems to know it all. Just to give a counter example to what s/he's been insisting regarding the term of "completion of studies" or "with a degree/certificate" whatsoever: in Zurich, I have had too many friends around me who came initially with a "postdoc" education B permit and had the years counted when applying for C through the VINTA program for non-EUs. Well, perhaps in VD this is specified, but certainly there are cantons like Zurich where there's plenty of room for law interpretation, which makes her/his showcase of knowledge about how law should be understood even funnier.

Coming back to the OP's question, I think the most likely scenario would be that you wouldn't be deemed eligible for applying for a C at the renewal time. In any case you should only start holding a C from this summer at the earliest to fulfil the requirement of year counts, which would leave a gap to be filled by another B. I believe I have seen a similar case in this forum where someone renewed her/his B in August and applied for a C in September, with lag of just a couple of weeks. Nonetheless, I do think it'd be worthwhile to send an inquiry at the time of the renewal - maybe you can start the process earlier.

I myself am in a very similar situation so I'd follow to see how your case plays out. Thanks OP for posting.