The Tension between Family Law and Protecting the Nation

9When a nation establishes criteria for access to authorised residency or settlement and to the right to earn a living through family reunification, it defines the normative outlines of a family capable of (re)producing ideologically and physically the nation and citizenship (Pellander, 2014). The right to have a family, however, is then confronted with the policies to manage the migrant population, each of which is constructed in contradictory tendencies. Binational marriages are seen as a source of integration into society (Alba and Nee, 2003; Lavanchy, 2013) but also as a threat to social cohesion; some marriages are thus considered as ‘inacceptable’ (Wray et al., 2019). A paradox in implementation of the migration policy thus resides in the simultaneous commitment “to protect the family and a restrictive application of measures concerning migration through marriage” (Satzewich, 2015: 24).

10In Switzerland, binational marriages are subject to regulations and expectations that are stricter than those applied to marriages between Swiss nationals. Binational unions are deemed susceptible to being fraudulent and are consequently monitored by the authorities. Studies analysing policies against so-called marriages of “convenience” [12] (or “sham” marriages) have shown how state authorities produce standards for binational marriages [13]. These standards, in particular, are governed by the requisite for homogamy [14], commonly shared in the European socio-political context (Déchaux, 2009). The authorities thus start from the assumption that “like attracts like”: in reference to what a couple should be, in the image of the imagined national couple, couples who are not alike – because of differences in age, common language, where they live, national/cultural origin, residency status, educational level, professional status or even economic power – must prove their affection publicly by demonstrating their mutual affection (Lavanchy, 2013; Maskens, 2015; Bonjour and de Hart, 2013; Bonizzoni, 2015). Heterogamy is thus an object of suspicion, as we shall see in the next section.

Suspicion in the Simplified Naturalisation Policy

11In the attempt to unmask any false affection, government agents are responsible for conducting enquiries regarding the nature of the marital union in order to collect material and immaterial proof of the veracity of binational marriages. The kind of proof collected is quite thorough: they ask for photographs of the couple together, speak to the couple’s neighbours and friends, visit the couple’s home and interview them for evidence to prove or disprove their shared life (Infantino, 2013). On the question of this moral economy of suspicion for binational couples, D’aoust (2013) highlights the normalization of affection taken into account in the state’s monitoring of these marriages. Binational marriages that do not reflect standards defining a true loving relationship are considered as suspicious (Neveu Kringelbach, 2015).

12In the face of suspicious unions, the aim of the agents responsible for naturalisation procedures is to protect Swiss nationality from potential frauds committed to unrightfully gain citizenship. Binational marriages are thus seen as a problem through the notion of abuse: that the foreign national spouse may have abused (or could abuse) the naïveté of the Swiss spouse; using the Swiss spouse as a tool to remain in the country, obtain a residence permit and take advantage of the supposed benefits of the country that were not available in the foreign spouse’s country of origin (Ossipow and Waldis, 2003; Riaño, 2011). Here is the view put forward by the federal government in 1983 in the context of the first legislative reforms leading to the present legal framework:

13

“At present, a Swiss woman who marries a foreigner – and a Swiss man who marries a foreign woman – are not treated the same way in the eyes of the law. […] There is no reason to maintain this unequal treatment, all the more so when the regime in effect can lead to cases of abuse: it happens that foreign women marry Swiss citizens solely to be able to remain in our country. In the future the foreign wives of Swiss citizens should no longer automatically become Swiss.” (CF, 1983: 4)

14If binational marriages are already suspicious, divorces following these unions only heighten the suspicion and incite various agencies to undertake enquiries that can lead to annulment of the foreign spouse’s naturalisation. Let us first see how this procedure comes about before analysing the arguments mobilised by the authorities in decisions on annulment of simplified naturalisations through marriage.

Defining a Rapid Chain of Events

25The TAF judgement focuses first on temporal elements in determining a presumption of fraud. This temporality determines whether there has been a rapid chain of events, as illustrated in the ‘seven months’ between granting citizenship and the couple’s divorce mentioned in this judgement:

26

“Because of marital problems, the spouses put a definite end to their life in common on 24 June 2011, i.e. only about seven months after the decision to grant simplified naturalisation on 18 November 2010, which, in view of the jurisprudence, is of a nature to support the presumption of fraudulent acquisition of simplified naturalisation.” (ATAF C-2140/2015)

27Once the presumption has been established, the object of the TAF judgements is to make the case of an untruthful statement which enabled fraudulent obtention of Swiss nationality: “there are grounds to doubt the existence of such a will when the marriage was dissolved shortly after the foreign spouse obtained simplified naturalisation […]” (ATAF C-410/2009). In support, the authorities reaffirm the notion of rapid chain of events and the legal definition of marriage:

28

“Basing itself on the rapid and logical chain of events, the lower instance retained in substance that X’s marriage, at the time naturalisation was pronounced, did not constitute a real and stable marital community as required by law and defined by jurisprudence.” (ATAF F-3567/2017)

29Naturalisation policy determines that an authentic binational marriage, the only one, in its view, justifying access to simplified naturalisation, is a marital relationship in which the duration of the union is a determining factor. As such, naturalised persons who get divorced within twenty-three months become suspect and only extraordinary facts or events can justify a marriage break-up:

30

“[…] it is recognised that, according to general experience in life and the way things usually come about, any difficulties that can arise between spouses after several years of married life – in an intact and forward looking marital community (the only one deemed worthy of protection for the federal legislator) – in principle would lead to a break-up of the union only after an extended process of deteriorating marital relations, generally interspersed with attempts at reconciliation.” (ATAF F-6358/2016)

31In cases of annulment of simplified naturalisation, the state authorities define the legitimate break-up of a marriage: according to jurisprudence [24], it must be linked to a process of gradual “deterioration” in the couple, interspersed with “attempts at reconciliation”.

Determining Incorrect Behaviour

32The TAF adopts the fault logic when it punishes a naturalised person who falsely declared marital harmony with deprivation of citizenship. Accordingly, several decisions concerning annulment of simplified naturalisation adopt the fault divorce logic that was anchored in the former law on divorce. These decisions target the individual attributes of the naturalised spouse, held to be responsible for abusive obtention of citizenship. The Swiss spouse, who also signed the Statement concerning Married Life, is also threatened with criminal pursuits although this threat is rarely applied, unlike deprivation of citizenship, which is more systematic. The law thus has concrete repercussions that are quite different for each spouse. The following extract illustrates the legal understanding of the naturalised person’s act of negligence:

33

“The marital union of spouses A and B was dissolving prior to the argument that doomed their union; it arose from the behaviour of the appellant who neglected his own home in favour of that of his parents […]. As support for its opinion, the ODM [presently the SEM] mentioned, in particular, that the appellant’s wife dated the start of their marital problems already in 2007and that the person concerned had not refuted her statements regarding the motives of their final argument, that is, his lack of involvement in married life to the benefit of relations with his family.” (ATAF C-2857/2011)

34Since the entering into effect of the new law on divorce, the conditions of a separation and its consequences no longer refer to the notion of fault. Yet for binational couples, blame is always sought, even if it is not so much as the cause of the divorce but rather as something supporting the suspicion that the foreign spouse used the simplified naturalisation procedure fraudulently. For example, in the case of binational marriages, adultery is seen not only as a breach of trust, it is also evidence for presumption of fraud:

35

“In particular, maintaining an extra-marital relationship over time, even if the other spouse is in agreement, is not compatible with the couple’s will to continue forming a long-lasting community.” (ATAF F-6657/2017)

36According to the authorities, infidelity proves the instability of the binational couple, and cheating on one’s spouse is considered as a wilful action to deteriorate the marital union. This questioning of the relationship by the authorities is an incursion into the area of a couple’s intimate relationship (Lavanchy, 2020). The enquiries conducted to identify blameable behaviour act as logics of control that also look into the sexuality of the appellant and the ex-spouse, as shown in this extract:

37

“These elements thus show that the matter of the couple’s intimate relations was a source of disagreement and dissatisfaction, adding to other areas of discord between the spouses, something that the appellant must have been aware of when she signed the statement of marital community.” (ATAF F-1516/2018)

38Absence of sexual relations compounds other aspects such as disagreements between the couple, arguments over sharing household chores, lack of plans for the future or mutual affection, or even lack of interest in the spouse’s culture. These are all elements taken into account when defining the couple’s problems in the case of annulling naturalisation:

39

“Furthermore, during her hearing on 22 February 2006, B. stated that during her marriage with the appellant, the latter regularly returned to his country of origin to visit his family, "that is, every other year for about three weeks’ time", explaining that she had never come along with him. This attitude demonstrated how little interest the above-mentioned had for the appellant’s socio-cultural and family environment.” (ATAF C-1100/2008)

40The extract from the following judgement shows that good communication supposedly represents the tie between the spouses in their married life:

41

“On the question of the type of problems, she mentioned that she had had disagreements with her husband about household expenses, that "their goals in the couple were not the same", that "there was no longer any dialogue between us" and that the disagreements in the couple started "mainly over the last six months of my married life.” (ATAF C-1100/2008)

42The various judgements also reinforce a definition of marriage closely tied with having children. Refusing to have children was also seen as a defect in the marital union:

43

“On the other hand, it is worth mentioning here that the question of having children together was an obstacle to their marital union because the person concerned had not given up the idea of having children, while her ex-husband was totally opposed in view of his age and financial situation. Indeed, as noted by the SEM, a disagreement between the spouses on this fundamental element is significant regarding the stability of the marriage. Furthermore, in compliance with the jurisprudence of the Federal Tribunal, it is not likely for such a question to be discussed only after several years of marriage. The spouses should have already been aware, when they signed the statement of 28 February 2011, that their family plans were incompatible.” (ATAF F-3586/2016)

44The incompatibility of the spouses’ plans can be imputed to an imagined cultural distance, which contradicts a logic of homogamy, as we shall see in the following section.

The Culturalization of Binational Marriages

48Defining typical socio-cultural profiles established on the basis of the appellant’s national origin legitimates a State legal intervention where culture is an essentializing element: it founds the notion of an essential difference among individuals based on national-based configurations, all the while turning racializing categorisations into something that can be spoken of (Guillaumin, 1992; Lavanchy, 2018). By considering the question of binational marriages under the angle of nationality, the policies render these marriages susceptible of being fraudulent, in terms of acquiring Swiss nationality. Binational marriages become culturalized in virtue of the normative injunctions that arise through the intersection of migration control policies with those governing family law. The following quote, in which the TAF perceives an incongruency between the assumed cultural injunctions and individual behaviour illustrates this culturalization of binational marriages:

49

“In this matter, the ODM [now named SEM] merely mentioned that no child had been born of this union, and this in relation to family situations typical in Algeria, a country where a childless marriage is still effectively unusual, regardless of the cause; therefore this observation cannot be qualified as arbitrary.” (ATAF C-5674/2010)

50As we see, in the perspective of authorities applying policies, national belonging produces homogenous cultural attributes in each citizen: individual behaviour aligns with the customs and traditions of their country. For EU/EFTA nationals, cultural attributes are seen as close to those of the Swiss culture, while other cultures are more distant and thus supposedly incompatible; this produces people who are “undesirable” (Studer et al., 2013). On the basis of these racializing prejudices – according to which the Swiss are culturally different from nationals of so-called “third” countries, the motives for divorce in binational marriages in which the spouse has acquired citizenship are bound to the national identity of the individuals, even if they managed to obtain Swiss citizenship and thus demonstrate their “successful integration” (Gutzwiller, 2016). The logic of homogamy transcends legal considerations regarding criteria for integration that naturalised persons must meet during the naturalisation procedure.

The Prior Status of the Appellant as Evidence Regarding Presumption of Fraud

51The chain of events is systematically linked to the precarity of the spouse’s residence status prior to the marriage. These two elements form the basis for the presumption of fraud because they enable accumulation of evidence that jurisprudence deems to be “troubling”. Illegal stays in Switzerland, rejected asylum requests, deportation pronounced or risk of deportation as well as expired student permits or impossibility to extend a residence permit bolster the presumption and amount to evidence of abuse.

52Figure 1 illustrates that the majority of appellants were asylum seekers whose applications had been refused (37.6%). Another 32% of those appealing came to Switzerland in order to officialise their marriage and had their status directly linked to family reunification, then 17% of them had had student permit before their marriage.

Figure 1: Status of appellants before marriage

Figure 1: Status of appellants before marriage

53For the legal authorities, the objective is not to determine whether the marriage was concluded to ensure a legal status for the foreign spouse, but rather to demonstrate that a rapid chain of events from marriage, obtaining citizenship to the divorce is tied to a dishonest behaviour, signs of planning by the naturalised person interested in becoming a Swiss citizen and achieving more sure conditions regarding settlement in the country:

54

“The SEM first pointed out that, although a precarious residence condition in Switzerland was not, in itself, reason to prejudge whether or not the concerned person was willing to enter into a real marital union, it nevertheless may constitute evidence of abuse if combined with other troubling elements.” (ATAF F-2033/2017)

55Our analysis of the jurisprudence shows that, for the authorities, the binational marriages targeted by the legal provisions only served the interest of the foreign national: the image of a foreign spouse conveys a potentiality for taking advantage, namely acquiring Swiss nationality. This principle legitimates the idea that nationality is to be protected from individuals who are dishonest in their statement on their common and stable married life. The state’s logic holds genuine marital unions up against marriages aimed solely at the foreign spouse obtaining citizenship.

56For policies and authorities, interests and emotions are seen as contradicting social aspects: on the basis of the imagined notion of Swiss couples, a binational marriage that is real cannot be correlated with any type of interest because the emotional aspects are seen to predominate (Andrikopoulos, 2019; Moret et al., 2019). In contrast, the image of the genuine couple is seen as a relationship openly equal between two autonomous individuals who have an emotional and sexual bond, with no other motivations other than shared love and affection. The following extract of a judgement illustrates this reasoning, where binational marriage is perceived as a strategy to circumvent an individual’s precarious status and therefore to overcome the legal barriers established by migration policies:

57

“[The SEM] deemed that there were grounds for presuming the concerned party’s fraudulent obtention of simplified naturalisation in view of the rapid chain of events, whether a first decision refusing asylum tied with deportation from Switzerland, the concerned party’s entry into clandestinity, his liaison with his future spouse while she was still married, a second asylum application sanctioned by non-consideration, marriage – enabling him to regularise his residence – concluded with a spouse eight years older than himself […].” (ATAF C-5674/2010)

58Our analysis of the data concerning the naturalised person’s status prior to marriage shows that people targeted by annulment of naturalisation are primarily those whose previous status was precarious – limited length of stay, asylum application rejected, residence permit expired, unable to find a job, no access to social protection measures, etc. This completes the evidence for presumption of fraud and reinforces the policy to protect the nation from “undesirables” – people who do not meet the criteria for access to the status of residency or settlement in Switzerland, a grand majority of whom are “third country” nationals.

59As shown in Figure 2, 58% of the appeals against a decision to annul simplified naturalisation through marriage are submitted by nationals of countries in the African continent [26] and 22% are from the European continent: the majority of the persons appealing are from Kosovo (15%), Algeria (13%), Morocco (9%), Cameroon (8%) and Tunisia (6%). At the same time, according to OFS data (Figure 3), the majority of people who obtained simplified naturalisation through marriage are European (64%). Some 98% of persons appealing are nationals of so-called “third” countries (Figure 4). However, from a general point of view, this path to naturalisation is, in the regions studied, generally obtained almost as often by EU/EFTA nationals as by people from so-called “third” countries (Figure 5).

Figure 2: Nationality of appellants by continent

Figure 2: Nationality of appellants by continent

Figure 3: Nationality of spouses obtaining simplified naturalisation

Figure 3: Nationality of spouses obtaining simplified naturalisation

Figure 4: Nationality of appellants

Figure 4: Nationality of appellants

Figure 5: Nationality of persons naturalised (art. 21 LN)

Figure 5: Nationality of persons naturalised (art. 21 LN)

60What is at stake in the naturalisation policy can be found in the definition of national identity (Centlivres, 1990; Frauenfelder, 2003). This policy aims symbolically and materially to (re)produce social cohesion, expressed under the standard of Swiss citizenship or the nature of people perceived as capable of integrating into the national community in virtue of their “lifestyle” especially in their family practices (CFM, 2012). They are placed in opposition to an image of the Other: “undesirable” foreigners, thought to be incapable of or even harmful for, (re)producing the nation (Tonkens and Duyvendak, 2016; Bonjour and Chauvin, 2018). These categories and identities are produced by the law and the law reproduces an ethnicity by defining a concept of the imagined nation (Yuval-Davis, 2003; de Hart, 2015). The migration policy acts on the normative logics of binational marriage in the terms of jurisprudence: when the presumption of fraud revolves around the prior status of the appellant, this gives a negative tinge to marriages between nationals of “third” countries and Swiss citizens and a positive one to those formed with an EU/EFTA national because of foreign policies. The following section will focus on this distinction founded on the hierarchy of the image of the foreigner.

The culturalization of gender and social class

61A phenomenon of gender culturalization is (re)produced in certain judgements: in the context of North Africa, for example, men would not be able to form a couple with women older than them, which presumes that the marriage with a Swiss woman twelve years older, as we saw in the extract above, was contracted for motives benefitting the migrant spouse:

62

“Thus it cannot be excluded that the appellant’s wish to settle in this country and have legal employment may have influenced him when he decided to marry a woman holding Swiss citizenship, 12 years older than him, mother of a child born of a previous marriage and of a cultural background different from his, a situation completely unusual in the socio-cultural context of his [country of] origin.” (ATAF C-53/2011)

63Evidence relating to the age difference, seen through the prism of culture and gender, constructed by the authorities renders the incompatibility of binational couples fathomable and gives substance to the idea of fraud:

64

“There are also grounds to stress the age difference between the appellant and his first wife. Indeed, unlike his present spouse who is nine years younger than him, B. is eleven years older than him. Certainly, considered on its own, such an age difference between spouses is nothing exceptional. Nonetheless, taking into account the appellant’s culture of origin – where the idea of a man marrying a woman older than him is hardly the norm, and especially considering A.’s age when he contracted this [first] marriage, in the case at hand this difference is liable to heighten the appearance of a marital union that did not meet all the required qualities.” (ATAF C-1151/2006)

65At this level, quantitative data can also illustrate this phenomenon of interlocking social relationships: 75% of the time, the appeals involve cases of naturalised men (Figure 6), while from a general point of view, the majority of naturalisations following a binational marriage in Switzerland (56%) concern foreign women (Figure 7).

Figure 6: Sex of appellants

Figure 6: Sex of appellants

Figure 7: Sex of persons naturalised (art. 21 LN)

Figure 7: Sex of persons naturalised (art. 21 LN)

66From a social and political point of view, the construction of cultural differences is linked to a culturalization of national identity. According to this logic, countries are essentially denoted by a specific culture, one that differs from one country to another. In comparison with Swiss citizens, the features of this differentiation create a hierarchy in the category of foreign national, which is materialised in naturalisation policy: cultural proximity confers desirability in the image of the foreigner and cultural distance defines undesirability. Swiss citizens are implicitly seen as economically advantaged and culturally similar. Nationals of so-called ‘third’ countries, however, must prove they have professional capacities enabling them to meet their economic needs before applying for a residence or settlement permit in Switzerland, for their similarity is not seen as a foregone conclusion. Social class is intertwined with the construction of cultural “proximity” and “distance” (Bonjour and Duyvendak, 2017; Chauvin et al., 2019). People perceived as culturally distant, in the following extract Nigerian nationals, are automatically seen as disadvantaged economically. This culturalization of social class (re)produces the logics of distance between the Swiss and ‘third country’ nationals, and these distances thus foster policies of suspicion. Indeed, Switzerland is imagined and constructed as a desirable country:

67

“Nigeria, his/her country of origin, was at that time in the midst of a dramatic economic and political situation, due to its governing dictatorship. Still today, more than one third of the population lives on less than one dollar a day. In view of the migratory pressure arising from such a situation, it is thus quite likely that through marriage, X. was attempting to obtain residence papers in Switzerland rather than wishing to contract a marriage as defined in art. 159 of the CCS.” (ATAF C-285/2007)

68Access to naturalisation for nationals of so-called ‘third’ countries is legitimated by the principles that underly the unity of family nationality but also, in a second phase, it is regulated by the control measures of migration policies. Under the sign of cultural difference interwoven with phenomena of gender and social class, the norm of homogamy is thus reaffirmed.