Following the United Kingdom’s exit from the European Union on 31 January 2020 and the end of the transition period on 31 December 2020, the Agreement on the Free Movement of Persons (“FMPA”) between Switzerland and the EU no longer applies to UK nationals. This means that since 1 January 2021 UK nationals have the status of third-country citizens (non-EU/EFTA citizens) and as a result, UK nationals who wish to live and to take up employment in Switzerland are subject to the stricter admission requirements under the Foreign Nationals and Integration Act (“FNIA”).
The FNIA does not apply to UK nationals who already lived or worked in Switzerland prior to 1 January 2021. The rights acquired by UK citizens in Switzerland under the FMPA, such as residence permits, social security claims and the recognition of professional qualifications are protected under the Swiss-UK Citizens’ Rights Agreement which came into effect on 1 January 2021.
Under the FNIA, UK nationals no longer have an automatic right to reside and work in Switzerland. Instead, they are required to file an application for a work permit to the competent cantonal immigration and labour market authority. Starting work or even travelling to Switzerland to find work before a permit is issued is prohibited (as opposed to EU/EEA citizens). Under the FNIA, work permits can only be issued to highly qualified applicants, such as managers, specialists or other skilled professionals which means that generally only UK nationals with a degree from a university or an institution of higher education and a number of years of professional work experience are eligible for a permit. In addition, the intended activity of the individual must have a positive effect on the Swiss economy and the future Swiss employer must show that no suitable Swiss or EU/EEA national could be found to do the job (principle of priority of domestic workers). For this purpose, employers must run authentic recruitment efforts for at least four weeks and provide a list of any rejected candidates supported with reasons for the rejections. Furthermore, work permits for third-country citizens are subject to quotas. Switzerland created separate quotas for UK nationals in the amount of 3,500 for the year 2021 (2,100 long-term residence permits and 1,400 short-term permits).
The good news is that compared to work permit applications of other third-country citizens, the application process for UK nationals will be simplified. UK nationals do not need a federal licence from the State Secretariat for Migration. Instead, the competent cantonal immigration and labour market authorities decide autonomously.
In order to facilitate market access for cross-border service providers from the United Kingdom in Switzerland and vice versa, Switzerland and the United Kingdom entered into an agreement on services mobility which came into effect on 1 January 2021. The Services Mobility Agreement (“SMA”) is limited to two years for the time being but may be extended by the parties. Under the SMA, UK professionals, such as management consultants, IT experts and engineers can continue to travel to and work in Switzerland for up to 90 days per calendar year without the necessity of obtaining a work permit. Instead, Switzerland will continue to use the online notification procedure for UK companies, as is in place for EU/EFTA employers. The SMA is currently limited to persons with qualifications at university or equivalent level and covers persons who are seconded by UK companies (irrespective of their nationality) and self-employed cross-border service providers with company headquarters in the United Kingdom who are UK citizens. The SMA further applies to service providers who are protected by the Swiss-UK Citizens’ Rights Agreement. If an assignment takes longer than 90 days, however, a permit under the FNIA is required and an application to the competent cantonal immigration and labour market authorities before expiry of the 90 days period is necessary. Quotas apply to service providers with assignments of more than 120 days per year.
Therefore, UK nationals who already worked in Switzerland prior to 1 January 2021 and UK cross-border service suppliers who intend to work in Switzerland for less than 90 days per calendar year will still benefit from the same rules as under the pre-Brexit regime. Other UK nationals will have to satisfy stricter requirements under the FNIA subject to certain simplifications. The Swiss Federal Council indicated in the past that the restrictions under the FNIA could further be lifted for UK nationals, such as the principle of priority of domestic workers, but no details are made public yet. In any event it will be important for employers intending to hire UK nationals in Switzerland to ensure they are up to date with the latest work guidance to avoid the risk of inadvertent non-compliance and to arrange that all formalities and requirements are satisfied in advance.
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