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Country Update 2023: SWITZERLAND

Laure Baumann

Contributed by: Laure Baumann (Lenz & Staehelin)

1st semester 2023



1. Country Overview


This report provides an update on developments in Switzerland in the field of migration. The period under review was marked by the conflict in Ukraine, an increase of asylum seekers and the adoption, on the legislative level, of a new status "S" for people fleeing Ukraine. Other modifications of the Federal Act on Foreign Nationals and Integration ("FNIA") are still being discussed, respectively have been adopted, relating mainly to facilitating the obtention of Swiss work permits for third-country nationals having completed their studies in Switzerland and the Schengen Entry/Exit System. The Post-Brexit Agreements in force since 2021 are still applicable, those with a temporary applicable term have been extended until the end of 2025.



2. Legislative Changes


i.  Swiss work permits for third-country nationals having completed their studies in Switzerland

 

A Swiss student residence permit issued to a third-country national can be converted into a Swiss work and residence permit under specific conditions. In particular, the application must, in order for the conversion to occur, be filed by the Swiss employer willing to hire the third-country national, have standard work conditions for the location, observe the profession or sector and have available quotas. Also, the third-country national to hire has to be a manager, a specialist or a skilled worker and his/her work has to be in the overall economic interests of Switzerland. Finally, in principle, a preference has to be given to EU/EFTA nationals.

 

The Swiss Federal Council decided to exempt Swiss student residence permit conversion applications from quotas. Such an exception would only apply to third-country nationals who obtained a diploma from a Swiss high school and for whom work activity in Switzerland would have an overriding scientific or economic interest. It is estimated that the number of third-country nationals concerned by this exemption would amount to 200 to 300 per year.

 

On October 19th, 2022, the Swiss Federal Council submitted the corresponding revision of the FNIA to the Swiss Parliament which should approve it in the course of 2023.

 

ii.   Schengen Entry/Exit System

 

The European Union decided to implement a Schengen Entry/Exit System aiming at registering entry and exit data of third country-nationals entering the Schengen area for a short duration (maximum 90 days over a 180-day period). The system is expected to become operational throughout the Schengen area in 2024.

In this context the European Parliament adopted the Schengen Entry/Exit System (“EES”) regulation (Regulation (EU) 2017/2226) and the corresponding amendments to the Schengen Border Code (Regulation (EU) 2017/2225) in November 2017.

Switzerland was notified about this Schengen development on January 17th, 2018, and given two years to implement it in its national legislation. On November 21st, 2018, the Swiss Federal Council adopted the dispatch on implementing the EES bill and  transmitted it to the Swiss Parliament which approved it on June 21st, 2019.

 

The implementation of the EES in Switzerland requires amendments to the national laws. In this context, the Swiss Parliament adopted in particular a new Article 103b ff. FNIA, as well as the corresponding Federal Ordinance on the Entry and Exit System (OEES) which came into force on May 1st, 2022.



3. Business Immigration


i.   Application of yearly quotas to Swiss work permits for Croatian nationals


Since January 1st, 2023, Croatian nationals who wish to work in Switzerland are subject to yearly quotas when applying for a Swiss work permit.

 

Indeed, on November 16th, 2022, the Swiss Federal Council decided to apply yearly quotas to work permits issued to Croatian nationals, considering the high number of work permits issued to those nationals in 2022. In this context, Croatian nationals are currently not allowed to work in Switzerland until they have received their work permit.

 

This decision was taken in accordance with the Agreement on the Free Movement of Persons (“AFMP”) (invocation of the safeguard clause anchored in Article 10 para. 4d AFMP) and took effect on January 1st, 2023 for the whole civil year (i.e. until December 31st, 2023). The Swiss Federal Council might decide to extend it for 2024 (to be decided by the Swiss Federal Council before the end of 2023).

 

ii.   Update on the Post-Brexit Situation

 

Following Brexit, Switzerland and the United Kingdom concluded among others the two following agreements:

 

(1) The Citizens' Rights Agreement, which has been applicable since January 1st, 2021, and allows UK citizens to retain the rights (including residency rights) they acquired up to December 31st, 2020, based on the AFMP.

 

This Agreement is still in force and applicable in its original version.

 

(2) The Agreement on Services Mobility, which allows (i) 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 per calendar year and (ii) companies based in the UK to second employees to Switzerland for a period of 90 days per calendar year.

 

This Agreement was initially valid for a period of two years. On November 9th, 2022, the Swiss Federal Council decided to extend the Services Mobility Agreement for three additional years, i.e. until the end of 2025. Its content remains similar.



4. Family based immigration


N/A



5. Asylum


In 2022, 24'511 people asked for an asylum in Switzerland, that is 9'583 more than the previous year. The main reasons for this 62% augmentation are the following:


(1) Currently, travelling has become possible again, thanks to the lifting of most anti-pandemic measures in the spring of 2022.


(2) Many of the traditional countries of origin and transit for asylum seekers saw their economies weaken as a result of the pandemic. Inflation caused by the war in Ukraine further exacerbated the situation, increasing migratory pressure in the countries concerned.


(3) Against this backdrop, Turkey seems to have encouraged, over the past year, Syrians and Afghans staying in the country to leave. As a result, the flow of migrants to Europe increased significantly in the summer of 2022.


In response to the wave of asylum seekers triggered by the armed conflict in Ukraine, Switzerland created a new type of Swiss temporary residence permit, namely the “S” permit, specifically for people who fled Ukraine.


This permit entitles its holders to stay in Switzerland provisionally and the duration of its validity (one year, renewable) does not entail any right of residence. Also S permit holders must apply for a work authorization to be allowed to start an employment in Switzerland.



6. Deportation


The return of asylum seekers to Croatia is no longer possible from the outset, particularly in view of the pushbacks that occur at the Croatian border. The State Secretariat for Migration has to examine thoroughly, on a case-by-case basis, whether there is a risk of human rights violations, according to a ruling by the Swiss Federal Administrative Court of January 6th, 2022.

 

On the other hand, people with serious health problems can now be sent back to Italy without having to ask the Italian authorities for an individual guarantee that they will be provided with appropriate accommodation and care. The Federal Administrative Court based this decision, dated April 19th, 2022, on the change in the legal framework in Italy.



7. Citizenship


N/A

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