08 May 2017

Work permit for business trips to Switzerland?

The question of whether a Schengen visa is sufficient for third-country nationals in Switzerland for a brief business stay or whether a special permit ("Permit") is required is raised repeatedly. In case of doubt, it is advisable to apply for a Permit.

In principle, those who want to be gainfully employed in Switzerland, require a Permit. Article 11 (1) of the Immigration Statute stipulates that "a Permit is required for gainful employment in Switzerland, regardless of the length of stay" whereby paragraph (2) of this Article states that employment is understood to be any "self-employed or self-employed activity usually carried out for remuneration". The legal situation seems unambiguous, but the clear wording is deceptive. The difficulty is that the concept of employment is not clearly defined. As a result, cantonal practices differ.

The concept of employment is broadly defined in the State Secretariat for Migration's directive on the Immigration Statute ("SEM Directive"). Any activity which is generally carried on for remuneration shall fall under "employment". More specifically, it states that the following are not considered as employed: a person who is dealing with the administration of his/her own assets "in the usual context" or who is engaged in an occupation "outside the normal range of economic and social activity" (See SEM Directive, stay with employment, foreign nationals, p. 83 – in German, French, Italian).

To facilitate this, the State Secretariat for Migration has published an overview of examples in the document "Annex to section 4.1.1: Concept of Employment". It shows, for example, that school-based instruction and non-business seminars or workshops are not regarded as gainful employment. This usually also applies to contract negotiations, preliminary meetings for future employment or meetings to a certain extent. In contrast, "training on the job", internships, project assignments, maintenance work or employee/feedback talks are regarded as gainful employment.

It is clear from this brief overview that the boundaries between employment and non-employment are fluid. If the situation is misjudged and no Permit is applied for, the affected employees and employers must expect penalties. These range from warnings and fines to prison sentences and long-term entry bans throughout the Schengen area. In case of doubt, it is certainly advisable not to take any risks and to consult the authorities or legal advisors and/or apply for a 120-day permit. This is generally not too difficult to maintain, and in particular, this approach does not utilise any of the limited quotas.

Author: Urs Haegi

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