Before we turn to the end of week assessment on the free movement of persons and the challenges raised by the Swiss vote of 9 February 2014 on curbing migration, this article aims to sum up the developments in the latter context.
You will remember that the challenges just mentioned began with the vote, in Switzerland, on the so-called ‘Mass Immigration Initiative’ on 9 February 2014. The vote was in favour of the initiative, with a very narrow majority of the people but a clear majority of the Cantons. As a result, new provisions were introduced into the Swiss Federal Constitution, namely Arts. 121a and 197(11). They state the principle of autonomous control by Switzerland of the immigration of foreign nationals into the country by means of quotas and national preference, whilst taking into account the economic interest of the country. They demand the implementation of this approach through federal legislation and if that does not succeed within a time period of three years, through an ordinance of the Swiss Federal Government, the Federal Council. They also demand the renegotiation of international agreements that are contrary to the new principles on immigration. Finally, they prohibit the conclusion of new international agreements that would be contrary to the new principles on immigration.
Because of this latter point, the Federal Council first decided not to sign the so-called ‘Croatia Protocol’, ie the protocol intended to extend the Swiss–EU Agreement on the free movement of persons to Croatia. This triggered the European Union’s (EU) refusal to renew certain other agreements, most notably the agreements on research and education such as Switzerland’s membership of the Erasmus student exchange programme. Switzerland eventually signed the protocol in March 2016 which enabled it to, again, participate fully in the EU’s research programme at the time, namely ‘Horizon 2020’.
Also in March 2016, the Federal Council presented national draft legislation for the implementation of the new constitutional principles, ie amendments notably to the Foreign Nationals Act. Among other issues, the draft provided for the introduction of a safeguard mechanism for limiting migration unilaterally, independent of an agreement on this issue with the EU.
The Federal Parliament decided to discuss the draft in its autumn 2016 session. It decided not to follow the approach suggested by the Federal Council but to take rather different steps instead in order to tackle unemployment in Switzerland. As a result, the law was changed in order to introduce an obligation, under certain circumstances, to report open positions to the local employment offices which are then given a number of days to search for applicants from their list of the unemployed. Only thereafter can the vacancy be published. This was essentially accepted by the EU as not breaching the Free Movement of Persons Agreement.
Read the information provided by the Swiss State Secretariat for Migration under ‘Obligation to give notice of vacant positions’.
© University of Basel