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I have invited some friends to the Schengen area (through Switzerland) as part of the visiting visa. In the invitation letter I wrote the words:

"I guarantee that they will exit the Schengen area. I will be responsible for and cover all costs of their food, accommodation, and travel."

However, they have now decided not to leave the area and ask for asylum in Germany.

What are the consequences for me? What should I do to minimize the consequences? I've talked to them and begged them to leave but they are not going back.

The reason they are not going back is because they are pursued by the police in the home country! Can I use this information to prevent them for seeking asylum here?

It's very important for me to be able to invite my family to Switzerland in the future.

AndyT
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183.amir
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    Being pursued by police in their home country may be the reason they are seeking asylum. – DJClayworth Sep 10 '18 at 20:23
  • Yes that's the reason. However, they could just leave the Schengen area and ask for asylum elsewhere so that I'm not held accountable. But they are not doing this! – 183.amir Sep 10 '18 at 20:28
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    Such a guarantee would be worthless if you could repudiate it just because the thing you promised to pay for actually happened. Why did you issue it in the first place? – hmakholm left over Monica Sep 10 '18 at 20:33
  • The persons were trustworthy! I trusted them and they were like family! – 183.amir Sep 10 '18 at 21:44
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    @DJClayworth So, I can kill someone in my home country, and ask asylum in another country? I don't think that's how it works. – BЈовић Sep 11 '18 at 07:53
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    @BЈовић The unconditional right to apply for asylum is established in the Universal Declaration of Human Rights. That does not mean that the application must be approved. Many countries don't however extradite persons, who risk the death penalty if extradited. It is very well possible that you can be granted asylum somewhere due to a murder charge in your home country to avoid cruel and unjust persecution. – Tor-Einar Jarnbjo Sep 11 '18 at 09:34
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    Do you know why they are being pursued by police in their home country? If it is for something like practicing their religion or taking part in a peaceful political rally, that is something they can probably get asylum for. If they are running from unpaid parking tickets, they probably can't. – Robert Columbia Sep 11 '18 at 11:25
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    @BЈовић You are right. That is not how it works. – DJClayworth Sep 11 '18 at 13:09
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    I'm wondering what this has to do with travel. OP is not traveling, and doesn't ask anything for his traveling friends. Isn't this a pure legal question? – pipe Sep 11 '18 at 15:27
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    I'm voting to close this question as off-topic because it's about a legal issue. – Nean Der Thal Sep 11 '18 at 17:25
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    I've asked this here because this is the other side of a Schengen visa. A lot of information is available for how to get a Schengen visa but there are no information available that warns the hosts of the consequences. – 183.amir Sep 11 '18 at 19:12
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    @pipe it's a pure legal question about visas, which are explicitly on topic. – phoog Sep 12 '18 at 03:13

3 Answers3

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According to the Swiss government's Information on Declaration of Sponsorship (pdf), a guarantor cannot legally vouch for a guest's departure from Switzerland. Any statements you may have made purporting to guarantee your guest's departure from the Schengen area are probably therefore without effect.

If you submitted such a form, you have undertaken to guarantee the payment of certain costs related to your guest, should they arise:

  • By signing the declaration of sponsorship, the guarantor undertakes to cover the following costs: Costs arising from sickness, accident, return transport and living costs, which would otherwise arise for public welfare or private medical services during the applicant’s stay in Switzerland

  • A maximum of CHF 30,000 for individuals or groups and families of up to 10 people who are travelling together.

Since the document appears to cover costs arising from the applicant's stay in Switzerland, as opposed to the Schengen area, you may even be off the hook if your (former) guest incurs any such costs in Germany.

Without having access to the actual text of the form, it is difficult to say anything more precise. If you can post the text of the guarantee, perhaps as an image of the form with identifying information blacked out, it may be possible to analyze it in more detail.

As you indicate in a comment that you didn't submit a formal guarantee but rather an informal statement in your invitation letter, the government probably discounted the guarantee from the start. Such guarantees generally do not carry any weight, since a sponsor or host is not really in a position to offer the guarantee.

In most cases, a guarantee says that the guarantor will do something specific if a certain condition is met. For example, when a merchant offers a money-back guarantee of the consumer's satisfaction, the merchant is undertaking to refund money when the consumer is unsatisfied. The guarantee you gave has no such backing: you haven't undertaken to do anything in particular if the person does not leave.

You are perhaps right to wonder whether your credibility would be called into question for future visa applications where you are the sponsor. There's not much you can do about that at this point, except to hope that the Swiss don't notice. It might also be a good idea not to make any claims about your prospective guests' plans to leave the Schengen area; that's normally a matter between the state and the traveler (unless the host has signed the formal declaration of sponsorship, of course).

If the host has not signed the declaration, then the host's role in the visa application is generally just to confirm the traveler's itinerary and that the traveler has a place to sleep. The host does not play a significant role in the assessment of whether the applicant will leave the country.

phoog
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  • I did not fill in the declaration of sponsorship form. I invited them through an invitation letter and in there I stated "I guarantee that they will exit the Schengen area. I will be responsible for and cover all costs of their food, accommodation, and travel." They provided their own proof of financing as well. – 183.amir Sep 10 '18 at 21:37
  • @183.amir I've added some text to address that. – phoog Sep 10 '18 at 21:49
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    German authorities are in this case according to the Dublin Regulation not responsible for the application for asylum and will most likely deport the persons back to Switzerland. Deportations to Greece and Hungary are currently suspended as the circumstances for refugees there are not deemed to fulfil basic humanitary standards, but persons coming from other participating states are regularly sent back. – Tor-Einar Jarnbjo Sep 10 '18 at 22:07
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    I am also not sure how you come to the conclusion that 'a guarantor cannot legally vouch for a guest's departure from Switzerland'. Even the text you are quoting clearly states that the guarantor vouches for return transport. I don't know the details in Swiss law, but the similar German sponsorship declaration even includes costs related to imprisonment and deportation. – Tor-Einar Jarnbjo Sep 10 '18 at 22:10
  • @Tor-EinarJarnbjo but nobody signed a formal declaration of sponsorship. If someone had and the applicant were sent to Switzerland and subsequently incurred covered costs then yes, the guarantor would be liable. But suppose the asylum applicant were successful. What then would the guarantor be liable for? – phoog Sep 10 '18 at 23:11
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    As I already wrote, there is no reason to assume that German authorities will even throw half an eye on the application for asylum. The persons will be sent back to Switzerland. I am not sure if or why it should be relevant if the declaration is made on a form or as a letter. 'I will be responsible for all costs of travel' sounds clear enough to me. – Tor-Einar Jarnbjo Sep 10 '18 at 23:29
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    @Tor-EinarJarnbjo: If the actual wording of the OP's guarantee is what he posted, then it doesn't sound to me like it's specific enough that it would hold up in a court. In particular it doesn't state what the OP would be liable to pay or do if the travelers fail to leave. The subsequent sentence would reasonably be interpreted as being in parallel to the half-baked attempt at a guarantee, rather than a fleshing-out of it. It says which costs the OP would bear for the planned visit that he intends to sponsor. – hmakholm left over Monica Sep 11 '18 at 00:31
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    @Tor-EinarJarnbjo I'll quote it with the relevant parts in bold: "the guarantor undertakes to cover the following costs: Costs arising from sickness, accident, return transport and living costs". This does not indicate that the guarantor is responsible for ensuring that they leave, merely paying the bill for it if they cannot. There is a big difference between paying for something and guaranteeing that it will happen. – ProgrammingLlama Sep 11 '18 at 04:58
  • @Tor-EinarJarnbjo I agree that Germany will probably send this person to Switzerland. In supposing that the asylum application were successful, I meant a subsequent application in Switzerland after being sent there from Germany. Is it necessary to make the declaration on the form? Maybe not; I'm not particularly familiar with Swiss law. But in legal systems I am familiar with, an undertaking like this must be entered into knowingly, which is why Swiss authorities specifically solicit a guarantee, using the form, when they think it is necessary. That didn't happen here. – phoog Sep 11 '18 at 13:31
  • @John The big difference is the amount on the bill you may or will be presented. Here in Germany, deportation costs can easily reach 10.000€ per person or more. Swiss officials are unlikely working for a cheaper payment. – Tor-Einar Jarnbjo Sep 11 '18 at 22:31
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    @phoog You are not familiar with Swiss law, but still think you known why Swiss authorities are acting in a certain way? The form of most types of contract is in most (if not all) West European jursidictions of no relevance. A verbal agreement is legally just as binding as some scribble on a napkin or an official form. – Tor-Einar Jarnbjo Sep 11 '18 at 22:37
  • @Tor-EinarJarnbjo sure, a contract scribbled on a napkin is valid, but only if the parties to the contract all understand it. The statement in question here shows rather the opposite. See https://www.admin.ch/opc/en/classified-compilation/19110009/index.html "A party labouring under a fundamental error when entering into a contract is not bound by that contract." So someone who writes "I guarantee his departure" in an invitation letter is not bound by the terms of the sponsorship form. – phoog Sep 12 '18 at 03:10
  • @phoog It is of course not required to understand a contract to be bound by whatever you are signing. If a simple 'I didn't understand what I signed' would be enough to be relieved from any agreed obligations, western societies would probably collapse. If you read just a few lines beyond your quote from the Swiss Civil Code, the concept of 'fundamental error' is defined rather precisely and not in any way obviosuly applicable to this situation. – Tor-Einar Jarnbjo Sep 12 '18 at 11:10
  • I am not saying that someone who writes 'I guarantee his departure' in an invitation letter is bound by the terms of the sponsorship form, but that someone who writes 'I will be responsible for and cover all costs of their ... travel' is responsible for covering costs related to their travel, should any arise, and that includes unexpected ('all') costs arising from e.g. detention and deportation, should these arise. – Tor-Einar Jarnbjo Sep 12 '18 at 11:12
  • @Tor-EinarJarnbjo It's not clear to me, however, that this is a contract. Where are the offer and acceptance? On the other hand, at https://www.ch.ch/de/einladungsschreiben-visum/, it is stated that a Verpflichtungserklärung may be required by the government if there is doubt about the applicant's finances. "This official form is given to the applicant and must be signed by the host and confirmed by the municipality or cantonal migration office." None of that happened. – phoog Sep 12 '18 at 14:28
  • @phoog OP offered with his invitation letter to bear all costs related to the trip and the immigration authorities accepted that offer with the issuing of a visa. At the page you are linking to, you can see that the invitor may provide a guarantee to cover all costs related to the trip in a formless invitation letter included with the application. A formal declaration of commitment from the invitor is only required if there is still doubt about the ability to finance the trip. – Tor-Einar Jarnbjo Sep 12 '18 at 16:17
  • Let us continue this discussion in chat. – phoog Sep 12 '18 at 16:32
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I (EU citizen) acted as a guarantor for non-EU citizens more than 10 times and in hindsight, I would never do that again. I had an expert lawyer on Schengen regulations counseling me and they clearly stated that if anything goes wrong the state authorities will make the guarantor pay for any expenses including, but not limited to, deportation.

You will not be blamed directly for them failing to leave in time, and you will not be held responsible in case they "disappear" somewhere in a Schengen country, or apply for asylum with whatever outcome - but none of this will change your financial liabilities to the authorities. Simply put: if the executive or the state has expenses for the case, they will ask for that money from you, up to a maximum of some amount around € 25.000,--

Your options:

  • do nothing and expect a financial loss as stated in worst case. it is likely that the immigration office will contact you when the visa expired and no exit is recorded in SIS. I had one case where the invited party was a day late and on monday after I was asked to see immigration police and explain.
  • inform the officer who processed the invitation. they may or may not be helpful, this can be risky
  • lawyer up and work out a defensive strategy.
dlatikay
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    Did you made these guarantees formally, or was it (as in this case) simply an amorphous guarantee stated in an invitation letter? – phoog Sep 11 '18 at 13:34
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    both. my residential federal state transitioned from less formal invitation letter templates to an electronic registration system with a six page form around 2014 IIRC. Still both are signed and form a contract. I was lucky and never had to put it to a test though. – dlatikay Sep 11 '18 at 13:56
  • If you formed a contract you surely knew what the terms of the contract were before you formed it, correct? That appears not to be the case here. – phoog Sep 12 '18 at 03:16
  • Which country is this? – mdd Sep 12 '18 at 12:40
  • +1 for "lawyer up" as this is a professional's field. – Make42 Sep 12 '18 at 15:04
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In addition to the answer above, you do not mention your own status in Switzerland. Are you a citizen, long term resident or on a temporary visa? If you are a citizen probably you have less to worry, but if you are indeed looking for applying for a citizenship, such things could complicate matters.

Switzerland has several instances of denying citizenship including matters which may seem trivial such as refusing to shake hands and being annoying to the local residents. Your case depends on the severity of the crime your guests are being prosecuted for at their home country. They would not be getting asylum unless they are being prosecuted for causes which are basic human rights in the western world (eg: their sexuality or religion). (They could of course lie to the German authorities to claim asylum somehow.)

If they are being persecuted for criminal charges, this could well end up against you considering you abetted them in escaping. All this of course depends on how much information the Swiss officials would get about this case, but in case they know it, there is no way this would support your cause.

Max Payne
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    Please don't write "the answer above". What is above or below what depends on user configuration and the number of votes an answer has received. Instead, please link to the answer you were talking about -- there's a "share" link that you can use to get a URL. I assume you mean phoog's answer, (currently the only one that's older than yours) but maybe you're talking about some now-deleted answer. – David Richerby Sep 11 '18 at 14:32