New integration requirements for foreign nationals
On 1 January 2019, the new Swiss Foreign Nationals and Integration Act (FNIA), previously known as the Foreign Nationals Act (FNA), as well as the amended Ordinance on Admission, Residence and Employment (AREO) entered into force. The aim of the new legislative provisions is to encourage and support the integration of foreign nationals through individual responsibility.
The integration requirements of the FNIA apply in particular to non-EU nationals, but also to the relatively few EU nationals assigned to Switzerland on a long term basis and who remain employed abroad during the duration of their assignment.
The competent cantonal immigration authorities will evaluate on a case-by-case basis and in accordance with their own practice the fulfillment of the following integration criteria outlined in article 58a FNIA:
- Respect of public order and security;
- Respect of constitutional values;
- Language skills;
- Participation in economic life or acquisition of education.
Please find here after the main situations in which the new legislative changes will likely impact your foreign employees :
- Employees: the issuance or extension of B type work and residency permits to non-EU nationals may be subject to integration criteria moving forward, although only the signature of a legally binding integration agreement for non-EU nationals is specifically mentioned in the new law/ordinance. Hence, each canton will decide on the applicable criteria, but we do not expect that the issuance of a B type work and residence permit will be subject to language requirements. Depending on the canton of residence, the extension of B permits might be subject to language skill requirements.
- Family reunifications: family members of foreign nationals holding non-EU B permits must either prove that they speak the local language to a level equivalent to A1 of the European reference framework or they must provide proof of enrollment in a language course to gain these skills. To obtain or extend a C (permanent residence) permit, the family members must fulfill the requirements listed above under point 2.**
- C permits: the issuance of such permits to non-EU nationals* is henceforth subject to language skills requirements. The applicant will have to have written skills equivalent to at least A1 level and oral skills equivalent to at least A2 level of the European reference framework in the language spoken at his/her place of residence. This requirement is also likely to apply when requesting the extension of a C permit. Some cantons may impose the signature of a legally binding integration agreement.
- Early granting of a C permit (i.e. after at least 5 years of continuous residence, before the usual 10-year period): written skills equivalent to at least A1 level and oral skills equivalent to at least B1 level of the European reference framework are required except for nationals of countries which have concluded an establishment agreement with Switzerland.*
- 'Retrogradation' from a C to a B permit: a foreign national who had previously held a C permit is issued a B permit because he/she did not meet the integration requirements. In such a situation, a new C permit may only be obtained after a further five-year qualifying period, provided the integration criteria are fulfilled.
- Spouses of Swiss nationals or C permit holders may henceforth only obtain a C permit after five years of continuous residence if they fulfill the integration requirements.
*This requirement is not applicable to nationals coming from a country which has concluded an establishment agreement with Switzerland, i.e. Germany, Austria, Belgium, Denmark, Spain, France, Greece, Italy, Lichtenstein, the Netherlands and Portugal.
**This requirement is not applicable to minors (art. 44 al 3 FNIA and to EU/EEA nationals which benefit from the Free Movement of Persons Agreement (FMOPA).
Better access to the Swiss labour market for recognised refugees
A simpler administrative process facilitates easier access to the Swiss labour market for recognised refugees and foreigners admitted on a provisional basis. The only requirement for taking up employment is for the employer to issue a notification before the start date of the employment. The labour and salary conditions offered need to be in line with local requirements. The payment of the so-called ‘special income tax’ has been phased out.
The integration criteria set out in the FNIA reflect to a large extent the current practice of the Swiss immigration authorities and the integration requirements in other EU countries.
It is important to note that the language integration requirements will not apply to highly qualified specialists or management employees (EU or non-EU) admitted to the Swiss labour market on the basis of a L or B type permit.
- The assignment or employment of foreign nationals will not be impacted by the new requirements if they apply for a short-term L type permit or a long-term B type permit.
- For the issuance/extension of permanent establishment (C type) permits after 5 or 10 years of residence, the authorities will henceforth always check that the integration requirements are fulfilled.
- We expect delays in the processing of family reunion applications of Non-EU nationals. Also, additional costs for language courses for spouses need to be taken into consideration.
- There will be some uncertainty regarding the practical implementation of the integration requirements until the practice in each canton becomes established. The practice will continue to vary from canton to canton.
Companies should consider
- Informing the relevant stakeholders in the organisation and GM/HR community about the new requirements.
- Setting expectations for upcoming assignments in terms of language courses for family members of Non-EU nationals and related costs.
- Setting expectations in terms of long term integration requirements for obtaining an establishment permit. The emphasis should be on the local language requirement, but also that unemployment or criminal records may lead to the cancellation of the Swiss residence status.
- Performing regular checks with B and C permit holders to ensure that they fulfil the integration criteria or are aware of them and are making the necessary efforts to fulfil them.
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