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Switzerland / Consequences of the adoption of the popular initiative "against mass immigration" on 9 February 2014

10/02/2014

On 9 February 2014, a narrow majority of 50.3% of Swiss voters (with a difference of less than 20,000 votes) surprisingly approved the federal popular initiative "against mass immigration".

The popular initiative "against mass immigration" demands that Switzerland control the immigration of foreign nationals by way of quantitative limits and quotas. In addition, the entitlement to permanent residence, family reunification and social benefits shall be restricted. The annual limits and quotas shall be geared "towards the overall economic interests", and preference shall be given to Swiss applicants for open positions. The key criteria for the granting of residence permits shall be, in particular, an application submitted by an employer, integration ability and adequate independent livelihood.

A precise implementing legislation regulating the details shall enter into force at the latest 3 years after adoption of the initiative. Overall, it should be noted that the initiative lays down a few principles (re-introduction of quotas for EU/EFTA nationals), but that the necessary implementation of the initiative on a statutory level is highly unclear at this point in time. In particular, it is unclear how many permits will be available per year and whether EU/EFTA nationals, within the framework of these quotas, will be favoured over third-country nationals.

The Swiss quantitative limitation of residence permits is incompatible with the central idea of free movement of persons, which aims at facilitating labour mobility. Based on the Agreement on the Free Movement of Persons, nationals of Switzerland and the EU/EFTA member states have the right to freely choose their place of employment and, thus their place of residence within the national territories of the contracting states. The initiative demands that all international treaties that are not compatible with the envisaged immigration control, in particular the Agreement on the Free Movement of Persons entered into with the EU, must be renegotiated and amended within three years from the adoption of the initiative. Accordingly, the Agreement on the Free Movement of Persons in its current form will continue to be in force for a maximum of three years. It is, however, possible that the Agreement on the Free Movement of Persons and all other bilateral treaties will be terminated by the EU (the EU has already signalled that there is very little scope for renegotiations).

Therefore, it must be held that the adoption of the federal popular initiative "against mass immigration", in the medium run (i.e. with the implementation of the initiative), will, in all likelihood, make it more difficult for EU/EFTA nationals to receive a work and residence permit in Switzerland. In view of the wording of the initiative, specialised and academic professions will probably be less affected by these new regulations as e.g. positions in the construction, catering or sales industry, respectively. In any event, instead of simply registering with the authorities at the new place of residence in Switzerland, as of the implementation of the respective legislation, EU/EFTA nationals will have to go through an approval procedure and the employer will have to submit a respective application.

Given the forthcoming negotiations with the EU and the necessary implementation of the initiative on a statutory level in Switzerland, the respective regulations should enter into force in 2015 or 2016.

At this stage, further remarks would be pure speculation.

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Christian Gersbach, LL.M.
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Zurich