At the time of writing, the deadline to agree an 'ordered' Brexit scenario (in which the European Union and the United Kingdom agree on a transition period until 31 December 2020) ends on 31 October 2019.
Failure to meet this deadline would result in a 'no-deal' Brexit, without the ratification of a withdrawal agreement between the two parties. In this scenario, the EU-Swiss bilateral agreements, including the Agreement on the Free Movement of Persons (AFMP), would cease to apply to Switzerland and the United Kingdom.
In this context, the Swiss Federal Council has developed a strategy known as 'Mind the Gap', which aims to maintain the existing rights and obligations under the AFMP as much as possible (for further details please see "Post-Brexit free movement of persons between United Kingdom and Switzerland").
This article discusses the situation for British nationals wishing to enter the Swiss labour market in case of a no-deal Brexit.
The United Kingdom is a key partner of Switzerland from an economic and political standpoint. In order to assure the continuity of this important relationship in case of a no-deal Brexit, the United Kingdom and Switzerland have signed multiple agreements, including the Agreement on Admission to the Labour Market for a Temporary Transitional Period following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons Agreement (the temporary agreement).
The temporary agreement is intended to:
- cushion the impact of an abrupt change from the free movement of persons to the United Kingdom acquiring third country status; and
- ensure legal certainty for the Swiss economy.
It will therefore serve as a transition regime in the event of a no-deal Brexit and will be entered into for a limited period until 31 December 2020 if required.
During this period, the temporary agreement will apply instead of the restrictive provisions of the Federal Act on Foreign Nationals and Integration (FNIA), which currently apply to non-EU nationals and would also apply to the British nationals without the temporary agreement in case of a no-deal Brexit.
After 31 December 2020 the FNIA will apply unless the United Kingdom and Switzerland agree on an extension of the temporary agreement or entered into new agreements.
The temporary agreement has yet to be officially approved according to the Swiss internal procedure. Should the United Kingdom leave the European Union before official ratification, which would likely be the case following a UK withdrawal on 31 October 2019, the temporary agreement would nonetheless apply immediately, but only provisionally until its approval.
The temporary agreement provides facilitated access to the labour market for British nationals in Switzerland and for Swiss nationals in the United Kingdom after Brexit.
For instance, the temporary agreement stipulates that the Swiss Federal Council will set special permit quotas for British nationals (eg, in February 2019 a 3,500 quota was set for 2019).
Further, the temporary agreement states that the FNIA requirements which usually apply to the hiring of non-EU nationals will not apply to British nationals. This would be the case for:
- the priority requirements (ie, Swiss and EU nationals usually must be prioritised in the hiring process);
- the professional qualification requirements (ie, non-EU nationals usually qualify for a work permit only if they are managers, specialists or other so-called 'qualified workers').
- the economic interest requirements (ie, non-EU nationals are usually granted admission only if it will benefit Swiss economic interests).
The other principles of the FNIA will apply (eg, integration rules such as speaking one of Switzerland's four official languages and respecting local working and salary conditions).
As another example, British cross-border workers will not be limited by the FNIA requirements that usually apply to non-EU national cross-border workers. For instance, they would not have to prove that they benefit from a permanent right to stay within a neighbouring state nor that they would be staying for at least six months within the defined cross-border area; in addition, their work activity would not be limited to the defined cross-border area.
By contrast, the temporary agreement does not concern people without any gainful activitiy, people admitted for family reunification, cross-border service providers and students, who would fall under more restrictive FNIA rules after a no-deal Brexit.
In addition, the temporary agreement does not cover the recognition of qualifications or diplomas.
However, the specific quota for British nationals as well as the non-application of the abovementioned requirements to British citizens applying for a work permit after a no-deal Brexit would significantly facilitate the admission of British nationals to the Swiss labour market.
The temporary agreement is further acknowledgment of the important UK-Swiss relationship, the desire to maintain it and the wish to ensure legal continuity despite Brexit.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
