05 July 2016

Since the 'Yes' to the mass immigration initiative, the Federal Council has been renegotiating the free movement of persons agreement with the EU. Contrary to the fears of the EU, there appear to be no signs of a tendency to give priority to Swiss nationals or the setting of limited quotas for EU and EFTA citizens. Accordingly, there will be no fundamental changes in the migration practice for dealing with European citizens.

Uncertainties in the implementation of the mass immigration initiative
Major headline in the Neue Zürcher Zeitung on 10 June 2016: "EU Commissioner: 'Swiss priority for their own nationals is not possible.'" In a brief interview with the newspaper in early June, when asked to comment, the European Commissioner for Employment, Social Affairs, Skills and Labour Mobility, Marianne Thyssen, was not very enthusiastic about the idea of implementing the mass immigration initiative in Switzerland by giving priority to Swiss nationals or setting special quotas for EU citizens. This would not be compatible with the free movement of persons. There was a flood of harsh criticism from readers; Switzerland must act independently as against external parties and have a right to their own regulations. We say: not such a big deal.

Plan B if negotiations with the EU fail
Starting point is the Swiss electorate's narrow 'yes' to the mass immigration initiative in February 2014 which requires limitation of immigration of foreign nationals into Switzerland. Since then, the Federal Council has been attempting to renegotiate the free movement of persons agreement with the EU and find an amicable solution. As the initiative has to be implemented by February 2017, the Federal Council has been forced to create a Plan B for the event that the negotiations with the EU are not completed by that deadline. To this end, the Federal Council presented a draft revision of the Aliens Act on 4 March 2016 (for more detailed information on the planned revision of the Aliens Act, see the next blog post on 15 July 2016).

Federal Council's draft revision of the Aliens Act
The draft provides, inter alia, for a unilateral safeguard clause for EU and EFTA citizens. So far nationals of EU and EFTA states have benefited from advantageous immigration control: while so-called 'third country nationals' must submit applications for work and residence permits before entering Switzerland, EU and EFTA citizens have an overriding right to be able to work in Switzerland. The Federal Council's draft now provides that the immigration of European citizens can be limited to a certain number. The regulations in the draft, however, are rather weak: maximum numbers for the immigration of European citizens are only provided for if a certain threshold is exceeded. In setting the threshold the Federal Council wants to orientate itself on the immigration figures for EU and EFTA citizens in recent years. There will therefore be no sudden drastic ceilings set. In this respect the quota concept has not been overdone. It is not expected that the unilateral safeguard clause will have a massive impact on the Swiss immigration practice in dealing with European citizens.

No numerical limitation
The maximum numbers are mainly relevant to new immigration. The authorizations already granted are not expected to be affected by the new regulation. The Federal Council's draft clearly states that EU and EFTA citizens will also, in the future, not need to submit applications for a work or residence permits. The priority for Swiss nationals is therefore off the table until further notice.
Switzerland is therefore not expected to introduce a priority for its nationals and probably no hard quotas for EU citizens. To this extent Ms Thyssen can be reassured. It is now up to the Federal Council, to make the weak protective clause palatable for the EU.

Author: Urs Haegi

Photo: Vitaly Volkov/Wikimedia Commons

Topics: ImmigrationFree movement of personsMII


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