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. Please note that we wrote this Article in August 216 and as matters evolve quite quickly, it might be that, as you take this course, there are more recent developments.
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 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. However, the Protocol has not entered into force yet.
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 provides 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.
At the same time, it remains the priority of the Federal Council to find a mutually agreeable solution with the EU. When the draft law was presented, such a solution had not yet been found in the consultations between Switzerland and the EU. The EU had declared that any decision could only be taken once the UK had voted on its continued membership in the Union. On 23 June 2016, the UK in a advisory referendum voted in favour of withdrawal from the European Union. As a result, the talks with Switzerland were put on hold.
Therefore, in summer 2016 it remained unclear how the vote would be implemented.
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