Contributed by: Rayan Houdrouge & Sara Rousselle-Ruffieux (Lenz & Staehelin)
June 2019 to May 2021
1. Country Overview
This report provides an update on developments in Switzerland in the field of migration. The period under review was marked by many entry restrictions due to the COVID-19 pandemic. The main legislative changes of 2021 are Brexit-related. Indeed, with the end of the transition period on 31 December 2020, a new regime applies to UK citizens from January 2021. In addition, a few modifications of the Federal Act on Foreign Nationals and Integration ("FNIA") are still being discussed.
2. Legislative Changes
As the Brexit transition period ended on 31 December 2020, the bilateral agreements concluded between the EU and Switzerland are not applicable to the UK anymore. In particular, the Agreement on the Free Movement of Persons ("AFMP") no longer applies to the UK from 1 January 2021. From this date, UK citizens are considered third-country citizens (as opposed to EU/EFTA citizens).
The Ordinance on Admission, Residence and Gainful Employment ("OARG") was modified in order to take account of the new immigration status of UK citizens and Switzerland and the UK have negotiated two new agreements (see in particular Section 3 below).
ii. Federal Act on Foreign Nationals and Integration ("FNIA")
Two motions have been submitted in the context of the rights and obligations of temporarily admitted foreigners (that is, persons who have been ordered to leave Switzerland but in whose cases enforcement of this order has proved unlawful, unreasonable or impossible) (see in particular Section 6 below).
The Swiss electorate voted on 27 September 2020 on an initiative providing for a modification of the Swiss Constitution, which would have led to the termination of the AFMP concluded with the European Union. The Swiss electorate rejected the initiative by 61.7% of the votes.
3. Business Immigration
The main legislative changes in this area relate to Brexit. UK citizens are now considered as third-country nationals (as opposed to EU/EFTA nationals) from a Swiss immigration perspective. In this context, a distinction should be made between UK citizens residing in Switzerland prior to 1 January 2021 and UK citizens entering Switzerland from 1 January 2021.
i. Swiss-UK Citizens' Rights Agreement
Switzerland and the UK have signed an agreement on the rights acquired by their citizens (the "Agreement"), which has been applicable since 1 January 2021 and allows UK citizens to retain the rights (including residency rights) they acquired up to 31 December 2020 based on the AFMP. The rights acquired under this Agreement are valid indefinitely, provided the conditions stipulated in the Agreement are met.
ii. Post-Brexit situation
UK citizens who wish to take up employment in Switzerland from 1 January 2021 are not covered by the Agreement. As a result, access to the Swiss job market for UK citizens is governed by national legislation regarding non-EU/EFTA citizens, in particular the FNIA.
Therefore, in light of FNIA requirements, a limited number (quota) of work permits are granted to UK citizens. Only essential managers and specialists from the UK are, in principle, admitted to work in Switzerland from 1 January 2021. A work permit would, in principle, also be subject to the work of the applicant being in the overall economic interests of Switzerland. Persons with specialist professional knowledge or skills may be admitted if it can be shown that these skills are required. Moreover, Swiss residents and EU/EFTA citizens are given preference and the wage and work conditions standard for the location, profession or sector must be observed.
In short, UK citizens no longer have a right to obtain a Swiss residence and work permit and permit applications are subject to a wide discretionary power of the immigration authorities (especially considering the quota system). Also, a UK citizen coming to Switzerland now has to wait for the issuance of their permit before they can start working.
Switzerland has adopted separate quotas for UK citizens (whereas all other non-EU/EFTA countries are subject to a common quota), valid for one year from 1 January 2021. 3,500 permits (2,100 residence permits and 1,400 short-stay permits) may be granted by the cantons in 2021.
iii. Agreement on services mobility
In addition, Switzerland and the UK have concluded an agreement on the mobility of service suppliers. This agreement, which applies from 1 January 2021, is valid for an initial temporary period of two years and can be renewed. It allows self-employed cross-border service providers who are British nationals with company headquarters in the UK to provide services in Switzerland for a period of 90 days. It also allows companies based in the UK to second employees to Switzerland for a period of 90 days; this applies to i) British nationals established in the UK or ii) to non-EU nationals and EU/EFTA nationals who have worked for at least one year in the UK labour market before coming to Switzerland.
Companies only need to inform the immigration authorities of the employment, or the secondment, by completing a form online. This form needs to be completed at least 8 days before the planned start of the activity in Switzerland.
4. Family based immigration
The COVID-19 pandemic led to a decrease in asylum migration: in 2020, Switzerland registered 11,041 asylum applications, i.e. 22.6% less than the previous year. For 2021, the State Secretariat for Migration ("SEM") expects to receive about 15,000 new asylum applications.
During Spring 2020, the Federal Council took temporary measures in order to continue the execution of asylum and removal procedures while guaranteeing protection against COVID-19 in the asylum system. These measures are extended until at least 30 June 2021.
Temporarily admitted foreign nationals are persons who have been ordered to leave Switzerland and return to their native countries but in whose cases enforcement of this order has proved unlawful (violation of international law), unreasonable (genuine risk to the foreign national concerned) or impossible (for technical reasons of enforcement). Their temporary admission is therefore an alternative measure. Temporary admission may be ordered for a duration of 12 months and be extended by the canton of residence for a further 12 months at a time.
Two motions have been submitted to modify the rights and obligations of temporarily admitted foreigners.
The first motion aimed at prohibiting temporarily admitted foreigners from travelling to their country of origin or provenance. Such prohibition already exists for recognised refugees. A violation of this prohibition would result in the revocation of their immigration status. Travel to other countries is subject to authorisation but derogations may be granted in exceptional cases (e.g. death of a close family member, training or professional purposes).
The second motion aimed at allowing temporarily admitted foreigners to change canton – under certain conditions – if they find a job in another canton or undergo long-term training there. Such measure should make it easier for these persons to enter the labour market.
The Federal Council modified the FNIA accordingly and submitted the project of modification to the Parliament. Discussions on this topic should take place soon.