Brexit – The United Kingdom is leaving the EU

Today, the United Kingdom (hereinafter referred to as “the UK”) is finally leaving the EU after a long period of negotiations on its conditions. But the end and the completion of the separation is still far. Since, as of February 1, 2020, the UK will have to negotiate new conditions on the various matters regulated by the agreements of the EU. So, what is changing today? Our employment law experts will answer the most urgent questions below.

| Philipp Bachmann, Simon Fricker

What happens when the UK leaves the EU with regard to immigration and employment between the UK and Switzerland?

As a consequence of the UK’s departure from the EU, the Agreement on the Free Movement of Persons (AFMP) with the EU will not apply between Switzerland and the UK anymore. In order to protect the residence rights of Swiss and British citizens acquired under the AFMP, the UK and Switzerland have signed an agreement.

With the Brexit deal, the UK and the EU have agreed on a transition period. The transition period will end on December 31, 2020 (if not prolonged). During this transition period, the AFMP between Switzerland and the EU is still applicable, so that UK-nationals can still immigrate based on the AFMP.

After this transition period, the new agreement between the UK and Switzerland on citizens’ rights (agreement on citizens’ rights) will come into force.

What rights are protected under the agreement on citizens’ rights after the transition period?

The key point is that the agreement only protects rights under the AFMP acquired before the AFMP ceases to apply between Switzerland and the UK. The main topics of the agreement are:

  • Residence with gainful employment (employed or self-employed)
  • Residence without gainful activity Right to family reunification
  • Employment in Switzerland as a cross-border commuter
  • Continuation of service provision (up to 90 days per calendar year)
  • Principle of non-discrimination Right to purchase immovable property
  • Social security: the regulations (EG) Nr. 883/2004 and Nr. 987/2009 shall continue to apply
  • Recognition of professional qualifications

What are the key differences between the new agreement and the AFMP for the citizens of the UK and their family members in Switzerland?

There are four major differences between the AFMP and the bilateral agreement on the acquired citizen rights:

  • The competent authority may require UK-nationals to provide an extract from the police records.
  • Crimes committed after the AFMP ceases to apply are going to be assessed according to the rules of the Foreign Nationals and Integration Act (FNIA), as is the case for non-EU/EFTA nationals.
  • The future family reunification is going to be regulated by the stricter provisions of the FNIA, starting five years after the AFMP ceases to apply (for example sufficient financial means).
  • The preferential market access for person-related service provisions under the AFMP will end when the AFMP ceases to apply. The starting of the services under the AFMP is relevant. Later, the services fall under the conditions of the General Agreement on Trade in Services (GATS) of the WTO.

What actions are required from UK nationals who are already living in Switzerland under the terms of the AFMP and for how long are the acquired rights valid?

UK nationals, who obtained a short- or long-stay residence permit or an EU / EFTA cross-border commuter permit before the AFMP ceased to apply, do not need to take any actions. There is a possibility that UK nationals may have to exchange their current permit for another. This would, however, not affect their rights.

The rights acquired under the AFMP and the agreement on citizens’ rights are valid indefinitely, under the condition that the requirements in the agreement are being met.

Under what conditions can UK nationals immigrate to Switzerland after the AFMP ceases to apply?

When the transition period will be over, UK nationals cannot immigrate to Switzerland under the provisions of the AFMP anymore.

Unless an additional bilateral agreement between Switzerland and the UK is concluded, UK nationals wanting to immigrate to Switzerland have to fulfil the requirements of the FNIA. They would be subject to national contingents. The Federal Council has already introduced a separate contingent for 3500 people to ensure the necessary flexibility for the Swiss economy.

At the moment, Switzerland and the UK are conducting talks on a possible future immigration scheme.

Do citizens of Switzerland or the UK need a visa if they travel to the other country in the future?

Since the EU and the UK agree on a controlled Brexit, the UK nationals do not need any visa during the transition period.

With the actual revision of regulation (EU) 2018/1806, citizens of the UK are exempted from visa requirements for a short-term stay within the Schengen area (including Switzerland).

If you employ UK nationals in your company or work in Switzerland as a UK national, our experts will be happy to provide further information.

Philipp Bachmann
Philipp Bachmann
Attorney-at-Law, Notary Public, LL.M. Certified Specialist SBA Employment Law
[email protected]
Simon Fricker
Simon Fricker
Attorney at Law Certified Specialist SBA Employment Law
[email protected]

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