The B-6396/2024 judgment rendered on 19 May 2026 by the Swiss Federal Administrative Court may well constitute a major turning point in the field of Swiss immigration and nationality law.
At first glance, the case appears to concern a technical dispute relating to the non-renewal of the accreditation of a fide examination centre. Upon closer examination, however, the implications of the judgment appear far more profound.
Over the years, the fide system has gradually established itself as the primary framework for assessing language proficiency in Switzerland. Its certifications now play a decisive role in naturalisation proceedings, in the granting and renewal of residence and settlement permits, and more broadly in the assessment of integration requirements under federal law.
The judgment under review may therefore extend far beyond the specific dispute that gave rise to it and raise fundamental questions regarding the legal soundness, coherence and long-term sustainability of the framework currently in place.
Drawing on more than fifteen years of experience in immigration, nationality and integration law, CROCE & Associés SA provides below an analysis of this decision and the significant issues it may bring to light.
I) What is the fide system?
The fide system (“Français, Italiano, Deutsch in Switzerland – learning, teaching, assessing”) has become the Swiss Confederation’s principal framework for promoting language learning and assessing the linguistic proficiency of migrants.
Developed under the supervision of the State Secretariat for Migration (SEM), in cooperation with field experts and on a scientific basis, the fide framework aims to ensure a uniform, reliable and rigorous assessment of the language skills of non-native speakers living in Switzerland. It is based on the Common European Framework of Reference for Languages (CEFR) and adopts a practical approach grounded in everyday-life situations.
Unlike purely academic examinations, the fide test is not designed to assess theoretical knowledge, but rather the candidate’s actual ability to communicate effectively in social, professional and administrative contexts. As noted by the Federal Council during the revision of the Federal Act on Foreign Nationals (FNA), its primary purpose is to verify an individual’s ability to function in everyday life, particularly in dealings with public authorities, the workplace, schools and healthcare services.
In practice, fide certifications now play a central role in the application of Swiss immigration and nationality law. They serve, in particular, to demonstrate compliance with the language requirements applicable to the granting of a settlement permit (Permit C), the early granting of such permit, certain family reunification procedures, as well as ordinary and facilitated naturalisation.
The required proficiency levels vary depending on the procedure concerned. By way of example, ordinary naturalisation generally requires oral skills at B1 level and written skills at A2 level, whereas the early granting of a Permit C requires oral skills at B1 level and written skills at A1 level.
In order to ensure the quality and consistency of the fide framework, the SEM has established a certification mechanism based on the quality standards of the Association of Language Testers in Europe (ALTE). Accredited fide examination centres must comply with strict requirements regarding organisation, infrastructure and qualified personnel.
In practice, applicants may demonstrate their language proficiency either through the fide test, a recognised language certificate, or a validation portfolio. The results are then recorded in the Language Passport, an official document widely used in proceedings governed by the FNA and the Federal Act on Swiss Citizenship (SCA).
The expansion of the fide system over recent years has been considerable. Thousands of administrative procedures now rely, directly or indirectly, on certifications issued within this framework. It is precisely this structural role of the fide system that gives judgment B-6396/2024 its potentially far-reaching significance.
II) Judgment B-6396/2024: the legal challenge to the fide system
The judgment at the origin of this case arose from a dispute concerning the non-renewal of a fide accreditation, the examination of which led the Swiss Federal Administrative Court to question the legal foundations of the system as a whole.
The appellant held an accreditation as a fide examination centre, valid until 7 December 2023. Since January 2022, the system for accrediting and supervising fide examination centres is entrusted by the SEM to the private company Flying Teachers GmbH, acting under the designation fide Secretariat. The latter is notably responsible for the promotion of Switzerland’s national languages, the validation of language skills, the accreditation of examination centres and their supervision, and has, in that context, adopted several regulations and directives governing the operation of the fide system.
In the present case, however, the appellant’s accreditation was not renewed upon expiry on the grounds that certain requirements relating to the organisation of fide examinations had allegedly not been complied with, in particular the obligation to involve two examiners.
Following the dismissal of its internal appeal by the bodies of the fide system, namely the Secretariat of the Quality Bodies, and the subsequent confirmation of that decision by the SEM, the appellant brought the matter before the Swiss Federal Administrative Court.
Before the Court, the appellant sought primarily a declaration of nullity of the contested decision, alternatively its annulment, as well as the renewal of its accreditation as a fide examination centre.
A) The SEM’s lack of authority
Seized of the appeal, the Swiss Federal Administrative Court was first required to address the preliminary – yet decisive – issue of the very authority of the bodies operating within the fide framework.
It therefore began by examining whether the SEM itself possessed a sufficient legal basis to accredit fide examination centres.
Before turning to the applicable statutory provisions, the Court recalled the requirements stemming from the principle of legality. This principle requires not only the existence of a formal legal basis, but also that such basis display sufficient normative density. In other words, the applicable rule must be formulated with enough clarity and precision to enable its addressees to foresee the legal consequences of their conduct. Where a public task is entrusted to the executive branch or delegated to a third party, these requirements become particularly stringent and, as a rule, presuppose the existence of an express legislative delegation.
Having examined the FNA (art. 58a), the FCA (art. 12 para. 1 lit. c), together with their implementing provisions (art. 77d of the Ordinance on Admission, Stay and Gainful Employment (OASA) and art. 6 of the Ordinance on Swiss Citizenship (OSC)), the Court found that these provisions empower the SEM to participate in defining the required language standards and to assist the cantons in the assessment of language certificates. The SEM may also delegate that latter task to third parties.
By contrast, no provision expressly confers upon it the authority to accredit private examination centres. The Court emphasised that the rules governing language proficiency concern individuals subject to integration requirements, whereas accreditation concerns the institutions entrusted with organising the examinations. These are distinct matters and cannot be conflated.
According to the Court, art. 58a para. 3 FNA merely defines the language skills required and contains no reference whatsoever to the accreditation of the examination centres responsible for certifying them. Accreditation pursues a separate objective and addresses a different category of recipients. While language requirements concern foreign nationals subject to integration criteria, accreditation concerns private entities entrusted with administering the examinations.
In those circumstances, the accreditation of examination centres appears to go beyond the mere support to cantonal authorities contemplated by the law. The OASA remains entirely silent on this issue. As for the FCA, it contains no delegation in favour of the SEM allowing it to establish such an accreditation framework.
The Court therefore concluded that “neither immigration law nor nationality law provides the lower authority [the SEM] with a sufficient legal basis to grant accreditations to language examination centres. Nor do the provisions examined above empower the lower authority to enact the applicable rules, in the absence of a valid delegation to that effect.”
B) The absence of a legal basis for the delegation to the fide Secretariat
Having denied the existence of a sufficient legal basis in favour of the SEM, the Court then went on, in the alternative, to examine the issue of the delegation to the fide Secretariat.
This part of the reasoning is of particular importance: even assuming, arguendo, that the SEM did possess its own authority to accredit examination centres, it would still be necessary to determine whether it could validly delegate that function to a private entity external to the federal administration.
In this respect, the Court recalled the principle set out in art. 178 para. 3 of the Federal Constitution of the Swiss Confederation: the law may entrust administrative tasks to public or private entities outside the federal administration. Such delegation, however, requires a formal legal basis, particularly where it involves the exercise of public authority.
The Court then characterised the activity at issue. It held that the assessment of language skills in matters relating to nationality law and immigration law, as well as the accreditation of examination centres, constitutes a state function. These activities cannot be regarded as minor or purely technical tasks, given their direct consequences for the examination centres concerned.
It followed that a formal legal basis was required in order to delegate such powers to a third party. Yet neither the FCA nor the FNA contains any delegation clause allowing a third party to exercise powers relating to the accreditation of examination centres, whether for the enactment of applicable rules or for decision-making purposes.
The Court further observed that the FNA contains, in other areas, several express delegations to third parties. The absence of any comparable provision in relation to the accreditation of language examination centres reinforces the conclusion that such delegation cannot be inferred implicitly from the statutory framework.
The Court’s conclusion was once again unequivocal: the SEM lacks a sufficient legal basis to delegate to a private entity the power to accredit examination centres. Since the delegation itself is devoid of any legal basis, the decision-making authority exercised by the fide Secretariat is equally devoid of legal foundation.
C) The validity of the fide's regulations
Finally, the Court turned to the regulations adopted by the fide Secretariat.
It observed that the main rules governing examination centres – including accreditation requirements, procedural rules, remedies and decision-making powers – are contained in regulations drafted by the fide Secretariat itself.
For the Court, this situation is deeply problematic. In the absence of a sufficient legal basis, the fide Secretariat could neither enact binding rules applicable to examination centres nor organise the appeal mechanisms against its own decisions.
The Court therefore considered that the normative foundations upon which the accreditation system rests suffer from significant shortcomings in light of the principle of legality.
In particularly strong terms, the judges held as follows:
“Consequently, the lower authority likewise lacks a sufficient legal basis to delegate to a private entity the power to enact the rules governing the accreditation of language examination centres. Since such delegation is devoid of a legal basis, the decision-making power exercised by the ‘fide’ Secretariat is equally devoid of legal foundation. It should be recalled that the lower authority was seized only after the ‘fide’ Secretariat and the internal appeals commission had already rendered their decisions. It is, moreover, unclear how the lower authority was seized, as the case file is deficient on this point. This lack of transparency confirms the doubts surrounding the legality of the system at issue. In any event, the decision submitted to the lower authority was not based on any legal basis from the perspective of the delegation of public tasks.
In addition, the rules applied by the lower authority were not enacted by it, but by the ‘fide’ Secretariat (consideration 3.4), which itself lacked a sufficient legal basis to issue such provisions. It is particularly problematic that the ‘fide’ Secretariat itself regulates the legal remedies available against its own decisions (point 3.9 of the Accreditation Regulations). The legal order does not permit a third party, on its own initiative, to designate the lower authority as an appellate body against its own decisions. Such a structure disregards the hierarchy of norms and is incompatible with the principle of legality (art. 5 para. 1 Federal Constitution).”
This reasoning ultimately led the Court to uphold the appeal and set aside the decision rendered by the SEM.
III) Critical analysis and implications
Although the Court considered that the lack of authority of the fide Secretariat was capable of rendering the decisions issued by it null and void, it did not itself formally declare such nullity. Indeed, the Court was only seized of the SEM’s decision and not of the decisions rendered by the bodies of the fide Secretariat. It therefore criticised the SEM for having failed to examine, ex officio, the issue of the fide Secretariat’s authority and annulled its decision on that basis, while remitting the case for a new decision in accordance with its findings.
As noted above, the implications of this judgment extend far beyond the specific case concerning the non-renewal of the accreditation of a fide examination centre. By successively calling into question the authority of the SEM, the validity of the delegation granted to the fide Secretariat, and the legal basis of the regulations adopted by it, the Swiss Federal Administrative Court raises fundamental concerns regarding the legal architecture of the fide system as a whole.
For several years now, the fide system has established itself as the reference framework for language certification in proceedings relating to immigration and Swiss nationality law. Its practical significance is now beyond dispute. Yet administrative practice, however longstanding or widely accepted, cannot remedy the absence of a sufficient legal basis.
While the Court’s reasoning appears, on the whole, particularly persuasive, the practical consequences of the judgment remain uncertain.
First, the judgment does not identify any authority currently competent to accredit examination centres. Having denied the existence of both an independent authority of the SEM and any valid authority of the fide Secretariat, the Court leaves open the question of which authority, if any, could lawfully exercise that function in the future.
Second, the situation of pending accreditation proceedings appears particularly problematic. If no authority currently has a sufficient legal basis to issue decisions, the continuation of ongoing procedures may face significant practical obstacles. In particular, it remains unclear before which authority a new accreditation request should now be pursued and under which procedural framework it should be examined.
Third, the judgment indirectly raises the question of the status of accreditations already granted. Admittedly, the Court was not seized of that issue and did not rule on it. Nevertheless, it expressly recalled that a qualified lack of authority may lead to the nullity of the decisions rendered. Such a statement cannot be underestimated.
Fourth, the judgment may also raise questions from the perspective of economic freedom. If centres already accredited were allowed to continue operating while no new accreditations could be granted, unequal treatment between economic operators could arise. Such a situation could effectively freeze the market to the benefit of existing centres and to the detriment of new entrants. This issue, however, was not examined by the Court and remains open at this stage.
Finally, the judgment raises the issue of the legal status of language certificates already issued under the fide system. On this point, however, the consequences of the decision should be put into perspective. The Court does not in any way call into question the linguistic abilities of the candidates nor the intrinsic validity of the examinations already taken. Its reasoning is essentially directed at the legal foundations of the accreditation framework and at the allocation of powers between the SEM and the fide Secretariat.
In these circumstances, nothing currently suggests that fide certificates already issued could no longer be relied upon in proceedings governed by the FNA or the FCA. Such a conclusion would clearly go beyond the scope of the judgment itself.
The judgment nevertheless creates a degree of legal uncertainty. Since the certificates in question are issued within a framework whose institutional foundations have now been called into question, it cannot be excluded that this issue may be raised in future administrative or judicial proceedings. A prompt clarification by the SEM would therefore appear desirable in order to preserve legal certainty and equal treatment of individuals subject to administrative proceedings.
Subject to a possible appeal before the Swiss Federal Supreme Court, judgment B-6396/2024 will likely stand as one of the most significant decisions rendered in recent years in the field of immigration law and the integration of foreign nationals.
Beyond the specific case at hand, it exposes a structural gap in the current legal framework. Two scenarios now appear conceivable should an appeal be brought before the country’s highest judicial authority. Either the Federal Supreme Court overturns the reasoning of the Federal Administrative Court and upholds the current framework. Or, conversely, it confirms the criticisms levelled against the fide system, in which case legislative intervention at the federal level would become difficult to avoid.
Under the latter scenario, it would fall to the legislator to expressly define the authority competent to accredit examination centres, the conditions governing such accreditation and, where appropriate, the modalities under which certain tasks may be entrusted to a specialised body.