Hiring UK nationals in 2021 Hiring UK nationals in 2021

On 23 June 2016, the United Kingdom’s (UK) electorate voted on the withdrawal from the European Union (EU). As a result, on 31 January 2020, the UK left the European Union. The withdrawal of the UK marked the beginning of a transition period until 31 December 2020. During this transition period, the bilateral agreements between Switzerland and the EU continued to apply to the UK. To avoid legal gaps and ambiguities about applicable law and regulations as at 1 January 2021, Switzerland implemented the “mind the gap” strategy which aims at a smooth continuation of the existing partnership between the UK and Switzerland. This strategy consists of several bilateral agreement, such as the Swiss-UK Citizens’ Rights Agreement governing the rights of UK nationals living in Switzerland and vice versa.

As it is unlikely that the need for skilled labor will diminish over the next years, several aspects regarding hiring and relocating UK nationals will become important considering the EU regulations will no longer apply to UK citizens in less than a few weeks. This article explores the 10 most urgent questions companies in Switzerland should ask from a Swiss immigration perspective.

The Swiss-UK Citizens’ Rights Agreement secures the rights acquired before the end of the transition period by Swiss citizens in the UK (and vice versa).

As Switzerland is not a Member State of the European Union, it is not a party to the withdrawal negotiations and any future agreement between the UK and the EU will not cover these aspects. Switzerland and the UK have therefore negotiated and established their bilateral agreement regarding their respective citizens’ rights.

The main areas covered by the Swiss-UK Citizen’s Rights Agreement are the following:

• Right of exit and entry
• Right of residence for persons pursuing an economic activity
• Right of residence for persons not pursuing an economic activity
• Family reunification
• Cross-border commuters
• Rights of persons providing services
• Prohibition of discrimination on grounds of nationality
• Purchase of immovable property
• Coordination of social security systems
• Mutual recognition of professional qualifications

For a more detailed view on this topic, please also refer to our blog published in February 2019: Brexit and Switzerland: 10 employment & immigration considerations

UK citizens residing in Switzerland with a valid residence permit (i.e. holders of a short-stay, residence, cross-border commuter permit or permanent residence) obtained under the Agreement on the Free Movement of Persons (AFMP), i.e. before 31 December 2020, generally do not need to take any action. However, they may be requested to exchange their current permit for a biometric one but this will not affect their current right to remain in Switzerland. In case they are not informed that they need a different permit, they must simply apply for a new permit prior to the expiry date of their current permit by way of filing the “Verfallsanzeige” i.e expiration notice, as usual.

From 1 January 2021, UK citizens must meet the terms of the Foreign Nationals and Integration Act (FNIA) and therefore will be treated like any other non-EU/EFTA citizen who wants to relocate to or work in Switzerland, unless an additional bilateral agreement between Switzerland and the UK is concluded. As a result, this will mainly have the following implications:
 

• Labor market testing/priority given to Swiss and EU employees: in order to hire a UK national locally, a Swiss employer would need to prove that no suitable EU or Swiss national could be found after running authentic recruitment efforts for at least 4 weeks. However, several months ago, Switzerland stated that it may well consider waiving this requirement for UK nationals. A final confirmation, however, is still pending.
  
  
• Quota: as per 2021, each UK national will be subject to quota. The Swiss Federal Council has created separate quotas (similar to the quotas for Croatian nationals) which are going to be distributed quarterly to the cantonal authorities as follows:
  • Separate quotas totaling 3,500 for 2021
    B-Permits: 2,100 per year
    L-Permits: 1,400 per year
     
• Work and residence permit application: UK nationals will need to submit an application to the migration authorities which needs to be approved before taking up residency and work in Switzerland. At the moment, the cantonal authorities are still waiting for further information from the Swiss Federal Council on the exact process for UK citizens as of 1 January 2021. However, it is expected that UK citizens will be treated similarly to other non-EU/EFTA citizens from 1 January 2021 on. Based on the discussions we hold with the government, we expect that UK nationals will have to file a relatively lean work permit application and only be eligible for a permit if they are highly qualified (university degree or high specialization).

As a more exact process for UK nationals can only be expected towards the beginning of December 2020, we recommend collecting all documentation necessary in order to be prepared in case a formal application were to become necessary. However, starting work in early January 2021 - i.e. in the first week(s) of January 2021 - may even turn out to be impossible given the latent uncertainty regarding the concrete implementation of the Brexit implications and the little time left to clarify them during the remainder of the year 2020.

Most cantonal authorities have already confirmed that applications for UK citizens who will be hired on a Swiss local employment contract or an assignment contract may already be filed but that they can only be processed once the exact process applicable to UK citizens has been confirmed by the Swiss Federal Council and the related quotas have been released (i.e. 1 January 2021).

Different to the government’s indication earlier this year, the Swiss federal agency has announced in a communication on 4 December 2020 that there was an agreement approved between Switzerland and the UK on the mobility of service suppliers. The agreement is currently restricted to two years, however, the contracting parties may jointly decide to extend the duration.

In regard to the use of the online registration tool, this has the following impact:
 

• Companies located in the UK may still send their employees to Switzerland to provide services for up to 90 days in a calendar year using the online notification procedure. Following employees can be registered:
  • EU/EFTA-citizens and UK-citizens employed in the UK;
  • Non-EU/EFTA citizens employed in the UK-citizens and living in the UK or in an EU/EFTA member state for at least 12 months prior to the notification.

It needs to be considered that the agreement only covers the provision of services from companies in the UK to Switzerland. Consequently, UK citizens with a Swiss employment contract may still not make use of the online notification after December 2020. Additionally, further clarification is expected on the situation of UK citizens living in another EU/EFTA country.

As the EU regulations are still applicable to UK nationals until end of 2020, they are entitled to obtain a work and residence permit in Switzerland if they move to Switzerland by 31 December 2020. The permit received will be considered acquired rights and will be renewed under EU regulations as long as they remain registered in Switzerland. Any acquired rights will cease to exist in case of a de-registration from Switzerland. UK nationals moving back to Switzerland after that date will be subject to the FNIA procedure.

Brexit will not impact the personal income tax position of a local Swiss hire. Based on the double taxation treaty (DTT) between Switzerland and the UK, the employee will typically be subject to income tax in the country where the work is performed. If a single individual moves to Switzerland or if a married individual moves to Switzerland with their spouse on a Swiss local employment contract, then they will become full tax residents of Switzerland and be subject to Swiss income tax rules. Potential UK tax liabilities may still arise, however this is where the rules to avoid double taxation come into play. In this case, this would typically lead to the crediting of Swiss income tax to overall UK income tax liabilities.

The social security rules for Swiss local hires will not change after Brexit. Therefore, if an individual moves to Switzerland on a Swiss employment contract, this individual will be subject to Swiss social security based on residency and place-of-work principles. If the individual does not move to Switzerland but maintains UK residency after local employment in Switzerland then it is possible - if certain conditions are met - that the individual will remain subject to UK social security. If the individual is hired in Switzerland before the transitional rules apply on 31 December 2020, the status quo applicable before 31 December 2020 is maintained. If the individual is hired locally in Switzerland after 31 December 2020 whilst maintaining residency in the UK, a splitting of social security contributions between UK and Switzerland is likely, based on the workday split.

With the revision of the EU’s regulations, UK citizens are exempted from visa requirements for the Schengen area for short stays up to 90 days even after 31 December 2020. KPMG has further been informed by the competent visa section of the State Secretariat for Migration that UK and British Overseas citizens will neither require an entry visa for stays beyond 90 days (e.g. when relocating to Switzerland or 120-day work permits).

Lastly this means that UK nationals may not exceed a stay of 90 days within any period of 180 days in the whole Schengen area as they may risk a penalty and entry restrictions at the border in case of an overstay.

The requirements for a family reunification application will only be regulated by the provisions of the FNIA five years after the AFMP ceases to apply, i.e. after 31 December 2025.

Therefore, family members will not be required to meet the language requirements. This also means that family members of UK nationals will still be able to benefit from the privileged process for family reunions under the EU regulations until the end of December 2025, even if the FNIA rules already apply for the main applicant.

The KPMG immigration team is in constant contact with the state secretary of migration of Switzerland and will do its utmost to stay informed on any developments at any time. Once the pending questions are clarified, we will make sure to share the information on our different media channels (Flash Alerts, Social Media, Client Mailing). In case you have a general query or even a specific case, do not hesitate to contact your immigration expert at KPMG.