Brexit & Switzerland: 10 immigration considerations Brexit & Switzerland: employment & immigration

As the UK’s EU departure deadline draws closer, there are still many open questions. Switzerland and the UK provide for more certainty in a bilateral citizens’ rights agreement, however.

We explore 10 aspects of employment and immigration in a post-Brexit environment.

1) What is the citizens’ rights bilateral agreement?

As Switzerland is not a Member State of the European Union (EU), it is not a party to the withdrawal negotiations and any future agreement between the United Kingdom (UK) and the EU regarding the UK’s withdrawal from the EU. Switzerland and the UK have therefore negotiated and established their own bilateral agreement regarding their respective citizens’ rights.

2) When will the citizens’ rights bilateral agreement be applicable?

The agreement will only come into force once the Free Movement of People Agreement (FMOPA) no longer applies between Switzerland and the UK. This will be after the end of the transition period agreed between the EU and the UK, i.e. probably on 1 January 2021 or, in the event of a hard Brexit (i.e. without a transition period), the agreement comes into force on 30 March 2019 (the day after the UK leaves the EU).

If a transition period is agreed between the UK and the EU, the citizens’ right agreement could be supplemented by additional provisions in light of future negotiations and understandings between the UK and the EU.

3) What rights are protected under this agreement?

In essence, the agreement protects rights acquired under the FMOPA while it still in force, i.e. before it ceases to apply between Switzerland and the UK. Such rights include but are not limited to:

• Residence with gainful activity including self-employment;
  
• Residence without gainful activity;
• Right to family reunification;
• Employment in Switzerland as a cross-border commuter;
• Continuation of service provisions (up to 90 days per calendar year) by companies having their registered office in one or the other country and self-employed persons domiciled in Switzerland or the UK;
• Principle of non-discrimination;
• Right to purchase immovable property.

4) How does the agreement differ to the FMOPA?

There are four major differences between the FMOPA and the citizens’ rights bilateral agreement between Switzerland and the UK:

• Before issuing a new residence and/or work permit, the competent authority may require Swiss and British nationals to produce an extract of their criminal record;
• Offences committed by an applicant after the FMOPA ceases to apply will be assessed according to the rules of the Federal Foreign Nationals Act (FNA), as is the case for non-EU/EFTA nationals;
• Five years after the FMOPA ceases to apply, the reunification of future spouses will be regulated by the provisions of the FNA, which are somewhat stricter than the FMOPA rules (e.g. proof of sufficient financial means to pay applicant’s own and his/her family members’ living expenses);
• The preferential market access for person-related service provisions under the FMOPA (90 days per calendar year and online notification procedure in Switzerland) is no longer applicable to services provided after the FMOPA ceases to apply. Such services shall fall under the conditions of the General Agreement on Trade in Services (GATS) of the WTO.

5) Until when is the FMOPA applicable?

Rights acquired under FMOPA remain in force for as long as the FMOPA still applies between Switzerland and the UK, including during the transition period.

In the event of a hard Brexit, i.e. without transition period, rights can only be acquired up until 29 March 2019. In such a case, Swiss and British nationals must have entered or been admitted to the other state at the latest by 29 March 2019 in order to meet the admission requirements under the FMOPA.

6) What impact does Brexit have on recognition of professional qualifications?

The citizens’ rights bilateral agreement between Switzerland and the UK provides that:

• A decision regarding recognition taken before the FMOPA ceases to apply retains its validity;
• A recognition procedure in progress at the time the FMOPA ceases to apply shall continue;
• Persons who have not yet applied for recognition of their qualifications or who are still in the process of obtaining them can apply for recognition under the terms of the FMOPA within four years.;

After the four-year period, qualifications will be recognised according to national law or some future agreement yet to be concluded, even if the FMOPA ceases to apply in the meantime.

As regards the declaration requirement for service providers from EU/EFTA member states (for a maximum of 90 working days per calendar year), where the profession is regulated, the declaration procedure remains valid only if:

• There is a written service contract;
• Services were already being provided before the FMOPA ceases to apply.

7) What does a hard Brexit scenario mean?

As already mentioned, the current bilateral agreement between Switzerland and the United Kingdom only provides for situations where the FMOPA continues to be applied respectively for rights acquired under the FMOPA. Consequently, post-Brexit bilateral agreements will have to come into force immediately or default rules will be applied so as to bridge the gap.

Further to the communication issued by the Federal Council on February 13, 2019, it has resolved that separate temporary quota of permits will be made available for British citizens as of March 30, 2019. This resolution intervenes so as to cover a hard Brexit scenario.

8) What impact does Brexit have on employment law considerations?

For existing UK nationals currently employed in Switzerland and in possession of a valid work permit delivered under the FMOPA, no impact is expected.

The situation could be more difficult in the event of a hard Brexit and if no post-Brexit bilateral agreements come into force. This could make it more difficult to hire UK nationals locally as they would have to meet a certain number of requirements, i.e. management level, specialists in their field, vain recruiting efforts, quotas, etc.). Indeed, such local hires would be subject to the issuance of a valid work permit.

9) What impact does Brexit have on immigration law considerations?

The fact of whether the FMOPA shall continue to be applied or not will have a direct impact on the relations between Switzerland and the UK. Indeed, British citizens who have not been admitted previously under the FMOPA shall be regarding as third country nationals and be subject to the same entry conditions as these persons.

So as to avoid adverse consequences due to a hard Brexit, in alignment with the various Swiss cantons, a separate and temporary quota for 3,500 permits for British citizens (2,100 B residence permits and 1,400 L short-term permits) has been introduced by the Federal Council so as to safeguard bilateral relations between Switzerland and the UK post Brexit.

Such quota shall apply solely to British citizens newly taking up employment, respectively been assigned to Switzerland until end of December 2019, i.e. that have not been previously admitted under the FMOPA, and shall apply until future immigration agreements have been found between the two countries.

Consequently, employers should anticipate such situations and as much as possible take appropriate measures so as not to have their business and workforce hindered by such scenarios, e.g. planning assignment missions to Switzerland in advance and filing in a timely manner work permit applications.

10) What should I do as an employer?

As an employer you should:

• Consider the impact Brexit could have on your workforce, i.e. employees in Switzerland, in the UK and within your assignee population;
• Avoid falling into any discrimination issues, in particular when having to take decisions based on an employee’s nationality;
• Know your exposure and understand how Brexit may affect your business;
• Start taking measures in order to mitigate any adverse effects, in particular if you have an important assignee population;
• Reach out and communicate proactively with your workforce and offer support in relation to any Brexit questions employees may have;
• Anticipate the impact of Brexit and how the ineffectiveness of FMOPA may affect your budget, processes, timelines, strategy, etc.