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10 September 2020

How Foreigners May Be Affected by the Upcoming Vote on the Initiative "For Moderate Immigration (Limitation Initiative)"

Whether you are reading up on this topic as a business owner, a foreign resident of Switzerland, or simply out of a personal interest, read on to learn the basics of what this initiative is about and what its legal effects would be if passed on 27 September 2020.

Initiative-for-moderate-immigration-froriep

In order to facilitate a basic understanding of the initiative "for moderate immigration (limitation initiative)", we have compiled a Q&A overview that touches upon the following questions:

  1. What does this initiative seek to achieve?

  2. What would be the legal effects if this initiative passes?

  3. If passed, how would this initiative affect foreigners currently residing in Switzerland?

  4. If passed, how would this initiative affect foreigners not yet residing in Switzerland, but hoping take up residence here in the coming years?

  5. What is the position of the Swiss Federal Council and Parliament on this initiative?

1. What does this initiative seek to achieve?

This initiative, submitted by the Swiss People's Party and the Action Committee for an Independent and Neutral Switzerland, seeks to terminate the Agreement between Switzerland and the EU on the Free Movement of Persons. According to the initiative and its draft amendment to the Federal Constitution, Switzerland shall regulate the immigration of foreigners independently. No new international treaties shall be concluded, and no other new obligations under international law shall be entered into which grant foreign nationals the free movement of persons. Furthermore, the draft states that negotiations shall aim to ensure that the Agreement of 21 June 1999 between Switzerland and the European Union and its member states on the free movement of persons expires within 12 months of the adoption of this amendment. If the negotiations prove unsuccessful, the Federal Council shall then terminate the mentioned Agreement on the Free Movement of Persons (AFMP) within a further 30 days.

The AFMP came into force in 2002, and allows citizens of EU countries (subject to certain conditions) to live, study, and work in Switzerland, and enables the same for Swiss nationals wishing to reside in the EU. Proponents of the initiative argue that Switzerland currently allows too much immigration, which in turn is creating problems of overpopulation, clogged public transport systems, rising rental/housing prices and cost of living, as well as increased unemployment, among others.

2. What would be the legal effects if this initiative passes?

Although the initiative seeks to end one thing – the AFMP only – (and to have no other similar treaty regarding free movement) if passed, its legal effects would be profound and far-reaching. The reason for this is a domino effect. Back in 1993, the EU agreed to negotiations with Switzerland in seven sectors, only on the condition that the negotiations be conducted in parallel and that the various bilateral agreements be signed and take effect together. Consequently, the bilateral agreements with the EU are structured and legally linked in a way that ending one agreement will end them all (due to what is commonly referred to as a "guillotine clause"). Therefore, ending the AFMP will automatically end all of the six other bilateral agreements that Switzerland has concluded with the EU. The other six agreements govern such things as technical barriers to trade (mutual recognition agreement), public procurement markets, agriculture, overland transport, civil aviation, and research.

The initiative defines that the Federal Council would have to negotiate a way for Switzerland to end the AFMP with the EU within a period of twelve months. If these negotiations failed, the Federal Council would then have to unilaterally end the AFMP within an additional 30-day time period. From a legal perspective, the consequences of one bilateral agreement being terminated are clear. Only if the EU is willing to renegotiate these consequences might the outcome be different.

3. If passed, how would this initiative affect foreigners currently residing in Switzerland?

This is a forward-facing initiative – in other words, it does not seek to retroactively change the status of foreigners already residing in Switzerland with a valid residence permit. Foreigners currently residing in Switzerland would therefore not be affected.

4. If passed, how would this initiative affect foreigners not yet residing in Switzerland, but hoping take up residence here in the coming years?

The first thing to keep in mind is that nothing would change for anyone right away. The Federal Council would have twelve months to negotiate Switzerland's exit from the AFMP. It is impossible to say already right now exactly how any negotiations between the Federal Council and the EU would go and how Switzerland would then decide to regulate immigration going forward. It is safe to say though, that if the initiative passes, taking up residence in Switzerland would become more difficult for EU nationals.

As it currently stands with the AFMP in force, citizens of EU/EFTA states have the right to take up gainful employment in Switzerland, either as the employee of a Swiss company or as a self-employed person, (with transitional provisions still applicable to citizens of Croatia). For example, if an EU/EFTA citizen presents a valid Swiss employment contract along with some other documentation, the person may register as a resident of Switzerland and receive a corresponding residence permit. In such a case, the person can, before he/she takes up the activity, usually simply present their documents to the local communal authority where they plan to live and they may take up residence in Switzerland without any requirement for a lengthy work permit application process or need to wait to enter Switzerland before a corresponding approval is issued by the Swiss authorities.

If the AFMP were to be invalidated, EU/EFTA nationals would become subject to the immigration laws outlined in the Foreign Nationals and Integration Act (FNIA) that are currently applicable to all third-country nationals. As an example, under the FNIA, a much more lengthy and involved process would apply for EU/EFTA nationals wishing to move to Switzerland in order to take up employment with a Swiss company.

In such a case, the Swiss company would need to file a full work permit application with the competent cantonal authorities. This would require such things as:

  • A showing of priority given to Swiss nationals and resident foreign nationals who are already part of the Swiss labour market;
  • Fulfillment of Swiss minimum salary requirements;
  • Evidence that the employee is a manager, specialist, or an otherwise highly qualified worker;
  • Evidence that admission of the employee is in the general interest of the Swiss economy as a whole.

It is also worth noting that in such a case, annual quotas for permits would apply and there could also be a requirement for collection of an entry visa prior to entering Switzerland. Only upon receiving a final approval could the person move to Switzerland and start work.

5. What is the position of the Swiss Federal Council and Parliament on this initiative?

Both the Swiss Federal Council and Parliament have come out firmly against this initiative, reasoning that it endangers relations with the EU, Switzerland's most important trading partner and thus puts both jobs and the Swiss economy as a whole in danger. Not only that, but it is further argued that passing the initiative would threaten the Swiss economy at a particularly bad time - during a pandemic - when financial insecurity has already increased along with unemployment.

If the initiative "for moderate immigration (limitation initiative)" passes on 27 September 2020, the process for EU/EFTA nationals to take up employment in Switzerland will become more complex, more time consuming and definitely less flexible. However, such a change will not happen immediately after the vote. Details regarding the new requirements will be delivered early enough to allow adaptation to the new situation.

We hope this information has been useful for you, and should you have any questions please feel free to reach out to us.

Photocredit: Shutterstock, ITTIGallery

Topics: Employment & Immigration