Switzerland Update: Modernisation of the Foreigners and Integration Act

The imminent modernisation of the Foreigners and Integration Act (“FNIA”) could have an impact on permits for foreigners. In view of the planned changes in the area of employment and the issuance and expiry of residence and settlement permits, a reassessment is necessary.

The consultation on the modernisation of the FNIA has already been opened. The current discussion provides not only for minor adjustments, but also for significant changes to take account of developments in the field of migration.

The centre of life at the time of the granting of the licence

A central point concerns the centre of life, especially in the extension of residence permits, and also in the granting of permits. The discussion about this is based on the current practice of the Federal Supreme Court, which is perceived as a relaxation of the concept of the centre of life. According to this, an examination of the centre of life as a prerequisite for approval cannot be carried out in isolation from the conclusively regulated reasons for expiration, namely leaving Switzerland for six months and deregistering abroad. It is demanded that the principle of the centre of life be clearly defined and applied. Today, although the actual centre of life in Switzerland is a prerequisite for the issuance of a residence permit, this requirement is not explicitly stipulated by law. The intended amendment of the FNIA is now intended to explicitly anchor this requirement.

When granting and extending residence permits, the centre of life would therefore be of decisive importance in the future. This is determined by the totality of the external circumstances from which the vital interests can be identified and must be demonstrably located in Switzerland. The transfer of the centre of life abroad would therefore lead to the expiry of the licence in the future.

Exceptions to this regulation would apply to temporary stays in Switzerland (e.g. for the purpose of training or medical treatment), short-term residence permits and cross-border commuter permits, as these do not require the centre of life to be in Switzerland. EU/EFTA nationals on the basis of the Agreement on the Free Movement of Persons (“AFMP”) and citizens of the United Kingdom based on the Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on the rights of citizens following the withdrawal of the United Kingdom from the European Union and the abolition of the Agreement on the Free Movement of Persons would also be exempt.

Switching to self-employment

Another important aspect concerns the switch to self-employment. Until now, Switzerland has imposed strict requirements on permits for self-employment. In particular, the requirements for the overall economic interest to be fulfilled and the necessary financial and operational conditions are rated as high.

Similar criteria are also used in other European countries for granting permits; however, in contrast to Switzerland, many countries provide for the possibility of simplified approvals. The abolition of the permit requirement for the change from employment to self-employment is therefore sought. This would grant holders of a residence permit full professional mobility from the outset. In addition, the possibility is to be created to link a residence permit to the condition that no change of employment may take place for a certain period of time.

Again, EU/EFTA nationals and UK nationals are exempt from the proposed amendments.

The abolition of the licensing requirement aims to reduce administrative hurdles and uncertainties in connection with the overall economic interest and to strengthen the promotion of innovation in Switzerland. The aim is to improve economic integration opportunities for affected persons as well as improved long-term prospects for qualified specialists to stay.

The forthcoming modernisation of the FNIA thus offers an opportunity to adapt the licensing policy to current needs and to strengthen long-term integration into the Swiss labour market and Switzerland’s competitiveness.

By Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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