The approach chosen by the Swiss Government
As we heard before, the Swiss Federal Government is in charge of drafting federal legislation for the implementation of the new constitutional principle of autonomous control of immigration of foreign nationals through quantitative limits and national preference, keeping in mind Switzerland’s general economic interest. In March 2016, the Government presented draft legislation meant to bring changes to various federal laws. Its news report begins as follows:
Federal Council submits draft legislation to manage immigration
Bern, 04.03.2016 – On Friday the Federal Council submitted to Parliament several pieces of draft legislation to implement the constitutional provisions on immigration. The Federal Council is continuing to push for a mutually agreed solution with the EU. Since it has not yet been possible to reach an agreement with the EU, however, as announced, the Federal Council is now proposing a unilateral safeguard clause to control immigration that will allow it to fix annual limits if immigration exceeds a certain level.
The Government then explains that it will pursue the on-going discussions with the European Union (EU) and continue to seek a mutually agreed solution, with a view also to safeguarding the bilateral approach. The aim is to rapidly resume the consultations with the EU at the latest following the referendum on whether the United Kingdom will remain in the EU. If the negotiations are able to reach an agreement, the Federal Council will submit the outcome in an appropriate way for debate in the Swiss Federal Parliament. In order to meet the deadline stipulated by the constitutional provisions on controlling immigration the Government has now proposed a unilateral safeguard clause in the draft legislation for the situation where no agreement with the EU can be reached in time.
With respect to the content of the legislation, the Government suggests that the present twin track approach in the Swiss Foreign Nationals Act be maintained. This means that the rules of that act apply fully to persons who do not fall under the Swiss–EU Agreement on the free movement of persons or under the Convention on the European Free Trade Association (EFTA) (track 1). For persons falling under these agreements, the Foreign Nationals Act applies only insofar as the agreements do not contain for more favourable provisions (track 2). This is, however, under the reservation of national safeguard measures.
According to the Government’s explanations in the media report, a ‘unilateral safeguard clause’ would provide for annual limits to be set by the Federal Council on the number of permits issued to people from EU and EFTA countries if immigration exceeds a certain threshold. When setting these limits the Federal Council would take Switzerland’s general economic interests into account as stipulated in the Federal Constitution and consider the recommendations of a newly established immigration commission. It would also take measures to better utilise the resident workforce and adjust the implementation of the legislation on foreign nationals where necessary in order to reduce the demand for additional foreign workers.
Note that the new mechanism would (re-)introduce the need for work permits for persons falling under the EFTA Convention or the Swiss–EU Agreement on the free movement of persons. As for the practical side, the new mechanism would be outlined on the level of federal legislation (namely in the Foreign Nationals Act), without, however, setting any numbers in terms of thresholds or quantitative limits. These would subsequently be set by the Government ordinances, based on the situation in the country at that particular time. Note that the Government, whilst indeed proposing quantitative limits to immigration, does not propose a system of national preference in employment where in every concrete case it needs to be checked whether a Swiss national is available for the job.
It is clear that these suggestions, if put into practice, will lead to a breach of the EFTA Convention and of the Swiss–EU Agreement on the free movement of persons. The Government felt that it could not do otherwise. At the same time, it highlighted a recent decision by the Swiss Supreme Court, namely in case BGE 142 II 34 from November 2015 (which in turn relies on the decision in the previous case BGE 133 V 367 of 2007). In the 2015 decision, the Federal Supreme Court stated specifically with respect to Art. 121a of the Federal Constitution that, in the event of a conflict between Swiss federal law and the Swiss–EU Agreement on the free movement of persons, the latter would prevail. In other words, if the Swiss Parliament were to adopt a law that goes against the agreement, the Swiss law could in fact not be applied in practical cases and people would continue to enjoy their rights under the agreement. Against this background, the Federal Council pointed out that for the proposed Swiss legislation to be enforceable against EU nationals, the agreement would have to be denounced.
Having presented a draft law, the Government has fulfilled its task. It is now for the Federal Parliament to discuss the draft and to vote on it. In our next step, we will ask you to put yourselves in the shoes of a Swiss Member of that Parliament and to decide on how you want to deal with the proposal presented by the Federal Council.
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