Federal Supreme Court, 29.10.2025, 6B_899/2024
Facts
A Kosovo national who arrived in Switzerland in 1987 at the age of 12 has been convicted of multiple counts of social security fraud. The cantonal authority ordered his expulsion from Switzerland for a period of five years. The convicted individual, who holds a permanent residence permit, has lived in Switzerland for over 37 years. He is married and a father of four children, including a son suffering from congenital cerebral palsy. The family unit is intact and lives together. His wife, who speaks little French, and their children arrived in Switzerland through family reunification. The appellant has a criminal record and significant debt, which led the lower court to describe his integration as "rather poor." He is appealing the expulsion order to the Federal Supreme Court.
Legal Analysis
Under Art. 66a para. 1 let. e of the Swiss Criminal Code (SCC), a foreign national convicted of social security fraud must be expelled from Switzerland for a period of five to fifteen years. However, the court may exceptionally waive expulsion if it would cause the individual serious personal hardship (hardship case) and the public interest in expulsion does not outweigh the individual's private interest in remaining in Switzerland (Art. 66a para. 2 SCC). This hardship clause is intended to ensure compliance with the principle of proportionality. A hardship case is recognized when there is a significant infringement of the right to respect for private and family life, as guaranteed by Art. 13 of the Swiss Constitution and Art. 8 of the ECHR. The existence of an effective and active family relationship with a spouse and minor children is a central factor. If a hardship case is established, a balancing of interests must be performed. The public interest in expulsion is assessed based on the severity of the offense, the danger posed by the offender, and their prognosis. The individual's private interest in remaining in Switzerland is assessed in light of their integration, family ties, and length of stay. The best interests of the children must be a primary consideration. An expulsion that leads to the separation of an intact family can only be justified by solid and serious grounds.
Application to the Case
The Federal Supreme Court finds that the lower court wrongly denied the existence of a hardship case and therefore failed to conduct the required comprehensive balancing of interests. Although the appellant's integration is considered deficient due to his debts and criminal record, the Federal Supreme Court emphasizes that this is offset by his very long stay in Switzerland (since childhood) and, above all, by the existence of an intense and intact family life with his wife and four children. The lower court considered scenarios that would inevitably lead to the separation of the family (the father leaving alone, or the parents leaving while leaving the older children in Switzerland). The Federal Supreme Court characterizes such a separation as a serious infringement of the right to family life (Art. 8 ECHR). Furthermore, the lower court failed to take into account the illness of the appellant's son. These elements are sufficient to constitute a hardship case within the meaning of Art. 66a para. 2 SCC. The lower court should therefore have conducted a full balancing of interests, which it did not do.
Outcome
The Federal Supreme Court grants the appeal, sets aside the cantonal judgment, and remands the case to the lower court for a new decision. The lower court must conduct a full balancing of interests. In particular, it must examine the situation of all the children, giving special weight to the best interests of the sick child (treatment and schooling options in Kosovo). It must also verify the residence status of the wife (who only holds a derivative residence permit) and take into account that the separation of a family unit can only be ordered for sufficiently compelling reasons.
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