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22 February 2019
The United Kingdom is a key partner of Switzerland on the economic, political and migration fronts. The existing relationship between the two countries is based on EU-Swiss bilateral agreements. However, after Brexit, these agreements will no longer apply and will have to be replaced.
In the context of its post-Brexit relationship with the United Kingdom, Switzerland hopes to guarantee or extend existing reciprocal rights and obligations under the current EU-Swiss bilateral agreements. To this end, the Swiss Federal Council has established a strategy known as 'Mind the Gap'.
In the event of an 'ordered' Brexit, the European Union and the United Kingdom have agreed to implement a transition period between 29 March 2019 and 31 December 2020. The EU-Swiss bilateral agreements would therefore remain applicable and the United Kingdom and Switzerland would have longer to reach new agreements on their future relationship.
In the event of a 'no-deal' Brexit, both the UK government and the Swiss Federal Council intend to maintain the existing rights and obligations under the current regime as far as possible and minimise any adverse effects on privileges granted to British and Swiss citizens.
At present, the contemplated approach is to apply new, specific UK-Swiss bilateral agreements for each sector (eg, transport, citizens' rights, trade and insurance) as soon as possible after 29 March 2019 without waiting until 1 January 2020.
In this context, the United Kingdom and Switzerland have developed a new specific agreement on citizens' rights in connection with the free movement of persons, which would apply as of 30 March 2019 in the event of a no-deal Brexit.
This new specific agreement was approved by the UK government and the Swiss Federal Council on 19 December 2018. It would protect the rights acquired by British nationals in Switzerland and those acquired by Swiss nationals in the United Kingdom under the Agreement on the Free Movement of Persons. These include:
As of 30 March 2019, the new specific agreement on citizens' rights in connection with the free movement of persons would benefit a significant number of British and Swiss nationals. Currently, 41,000 British nationals reside in Switzerland and 34,500 Swiss nationals reside in the United Kingdom.
However, affected citizens who take up residence in the United Kingdom or Switzerland after 29 March 2019 would not benefit from any particular rights or protections currently granted under the Agreement on the Free Movement of Persons (AFMP).
From a Swiss perspective, British nationals would therefore be subject to the ordinary immigration regime applicable to all non-EU nationals (eg, US citizens, Senegalese and Indians) – in particular, the Swiss Federal Act on Foreign Nationals. This will be the case until the conclusion of a potential new agreement on the free movement of persons.
Under the ordinary regime, non-EU nationals (as opposed to EU nationals) generally have no right to obtain a Swiss residence and work permit, and Swiss immigration authorities have wide discretionary power when reviewing permit applications.
The legal framework applying to British nationals intending to migrate to Switzerland would thus dramatically change as of 30 March 2019.
On 13 February 2019 the Swiss Federal Council decided to create specific temporary quotas in the form of 3,500 permits for British citizens who wish to take up residence and work in Switzerland in 2019. The quotas aim to mitigate the affects of the transition from the AFMP regime to the ordinary immigration regime applying to non-EU nationals.
Despite the extraordinary circumstances surrounding Brexit, this unique measure proves that the Swiss Federal Council is carefully considering the UK-Swiss relationship.
For more information please contact Rayan Houdrouge or Céline Squaratti at Lenz & Staehelin by telephone (+41 58 450 70 00) or email (rayan.houdrouge@LenzStaehelin.com or firstname.lastname@example.org). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
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