11.2.1 Constitutional Principles and Provisions
Provisions on labour are entrenched in the Swiss Constitution. In particular, art.110 Cst. on employment gives the Confederation the power to legislate on employee protection, relations between employer and employee and the employment services. The article also stands provisions on the scope of application of collective labour agreements. The confederation has legislative powers over unemployment insurance and social security (art. 114 para.1 Cst.) as well as civil law, which includes legislation on employment contracts (art. 122 para.1 Cst.). Regarding fundamental rights in the labour area, the Constitution sets out free choice of occupation, free access to an economic activity (art. 27 para. 2 Cst.) and freedom of association (art. 23 and 28 Cst.) as fundamental rights. Free choice of occupation as a fundamental right (art. 27 Cst) is reserved for persons admitted without restriction in the Swiss labour market or those who are entitled to a residence permit (SCHR 2015a, b, c).The Constitution further sets out social objectives such as the objective that all persons capable of work should be able to practise an occupation under equitable conditions to assure their maintenance, and whereby children can receive appropriate education. Those objectives bind the Swiss lawmaker but cannot be directly invoked before the courts as subjective rights (art. 41 Cst.) (2007, ILO national labour law, Swiss profile) (International Labour Organization 2017).
Concurrently with these general principles on employment, the main constitutional principles on migration and asylum are those laid down in two articles under section 9 of the Swiss Constitution: Residence and Permanent Settlement of Foreign Nationals, art. 121 Cst. on legislation on foreign nationals and asylum and art. 121a Cst. Moreover, Art. 25 Cst. refers to migration and asylum introducing the principle of non-refoulement, adopted from the 1951 Convention Relating to the Status of Refugees, as a fundamental right. Art. 121 Cst. sets up the Confederation as the authority in charge of legislation on entry to and exit from Switzerland, the residence and permanent settlement of foreign nationals and granting asylum. The article also details the possibility of expelling foreign nationals from Switzerland if they pose a risk to the security of the country and it defines the offences for which the legal binding conviction of the foreigner may lead to the expulsion of the foreign national.
Crucially, and more recently, art. 121a Cst., in force since February 2014 after the acceptance of the initiative against mass immigration,Footnote 1 sets out the main principles controlling immigration. This must be effected autonomously by defining annual limits and a quota of residence permits delivered to foreign nationals coming to the country for gainful employment. As explained in more detail below, when defining the quotas of permits for gainful employment, two major principles need to be taken into consideration: Switzerland’s general economic interest and labour priority to Swiss citizens.Footnote 2
Apart from the chapter dedicated to foreign nationals, the Swiss Constitution also refers to migration and asylum in its fundamental principles, by stressing the protection against expulsion, extradition and deportation as a fundamental right. Art. 25 para 2 Cst. bans the deportation or extradition of refugees to a state in which they will be persecuted. Art. 25 para 3. Cst. mentions that no person may be deported to a state in which they face the threat of torture or any other form of cruel or inhumane treatment or punishment. The Asylum Act (AsylA, 26 June 1998) provides criteria to be met in order to be granted asylum and rules the request. It also provides, amongst others, the right to reside in Switzerland (art. 2, para 2, AsylA). As described by Fernández and Abbiate (2018, p. 451):
The Lasi [AsylA] is tightly linked to the Letr [FNA] which specify the particular status of persons admitted temporarily into Switzerland (Art. 80a para 6, Art. 86, para 2, Art. 88, Art. 126a), the measures about the right to family reunification (Art. 3, para 2, Art. 47) and the departure from the country (Art. 76). (…) Contrary to the Member States of the European Union which are subject to European regulations concerning asylum, Switzerland’s peculiar status makes the country not subject to most European directives concerning asylum. In this regard, Switzerland is not subject to either the Directive 2013/33 “Procedures”, or the Directive 2011/95 “Qualification”. This however does not mean that the country adopts a completely different legal framework.
In practice, after filing the asylum application and initial questioning, the State Secretariat for Migration (SEM) determines whether the substance of the application can be verified. In cases where it cannot be verified, the authority rejects the application by refusing it without a formal procedure or by issuing a decision of NEM (non-consideration),Footnote 3 which dismisses the application. If Switzerland is responsible for the examination of the asylum application, the SEM starts the procedure. After completion of the procedure, the SEM determines whether the asylum seeker meets the criteria in first place for refugee status and in second place, if he or she can be granted asylum. Accordingly, the SEM can render four types of decisions in addition to the NEM decision (refugeecouncil.ch 2018). After the complete examination procedure, the SEM can:
Grant asylum (decision in favour of granting asylum) (B permit)
Temporary admission as a refugee (decision against granting asylum although the person is recognised as refugee under international law, with suspension of the enforcement of the removal order) (F permit with refugee status)
Temporary admission (decision against granting asylum with suspension of the enforcement of the removal order) (F permit)
Rejection (decision against granting asylum with removal order) (no legal status)
According to the AsylA, asylum may be granted to persons recognized as refugees under international law if there are no exclusion motivations (art. 49 AsylA). Those exclusion motivations are the unworthiness of the refugee status (art. 53 AsylA) and subjective post-flight grounds (art. 54 AsylA). Individuals granted asylum are entitled to receive a residence permit (B permit), which is delivered by their canton of residence.
In cases where asylum is denied, the SEM determines a removal order or an alternative measure that refers to articles 83 and 84 FNA. If the removal order execution is not permitted, not reasonable or not possible, the individual is admitted temporarily. In each case, the foreigner obtains a permit F, valid for 12 months, extendable if there are no motivations that could stop the temporary admission (art. 41 para 2 FNA).
More precisely, removal is not permitted (art. 83 para. 3 FNA) if it contravenes Switzerland’s obligations under international law. It is not reasonable (art. 83 para. 4 FNA) when the removal would seriously endanger the foreigner’s life, and it is not possible (art. 83 para. 2 FNA) when technical reasons prevent removal (no means of transportation, no travel documents issued from the native country, etc.). In that sense, a temporary admission is seen as an ‘alternative measure’ to removal. In cases where asylum is denied under the AsylA but there is a recognition of the refugee status under international law, the removal is postponed and the individual is provisionally admitted as a refugee and receives a permit F with the refugee mention. The AsylA provides for procedural guarantees and the “status” of ‘temporary admittance’ similar to the EU status on ‘subsidiary protection’.
Since 2010, asylum legislation began a restructuration process that is still ongoing and which was not driven by the so-called 2014 Refugee Crisis. Since this period, urgent measures entered into force on 29 September 2012. Amongst those measures are: the abolition of the possibility of submitting an asylum application abroad (art. 19 and 20 AsylA), and the abolition of desertion or refusal to perform military service as asylum motivations (art. 3 para. 3 AsylA). Additional modifications entered into force stated that the removal of citizens from countries considered as safe is usually reasonable (art. 83 para. 5 FNA) and that persons subject to a legally binding removal decision for which a departure deadline has been fixed are excluded from receiving social assistance (art. 82 para. 1 AsylA). More recently, in June 2016, Swiss voters approved an amendment proposal, the main objective is to accelerate the procedures and shorten the time-limit for appeals. Amongst the new disposals of the amendment, we find: the gathering of all the persons playing a role in the asylum process in registration and procedure centres, managed by the federal authorities, the separation between applications to be processed as accelerated procedures and extended procedures with respective timelimits for the duration of the process and the granting of free legal representation (ODAE Romand 2017). However, the complete reform will enter into force by the end of 2019, but the accelerated procedure has already been tested in Zurich since 2014.
11.2.2 Legal and Policy Framework Governing the Labour Market Integration of MRAs
Switzerland’s immigration policy is embodied in the Foreign Nationals Act (FNA),Footnote 4 approved by the Swiss electorate on 24 September 2006 and in force since 1 January 2008. However, persons who fall under the Swiss-EU Bilateral Agreement on the Free Movement of Persons (AFMP) face different legal treatment compared to third country nationals. The AFMP applies to citizens of EU-28/EFTA Member States and their family members, as well as to posted workers (regardless of their citizenship) of a legal entity based in an EU-28/EFTA Member State (SEM Migration Report 2018). Nationals from third countries (also called third state nationals) are subject to the FNA. This ‘two circles’ model of the Swiss foreign law distinguishes between the liberal European internal migration (first circle) and migration from outside Europe/EFTA (second circle) (SCHR 2015a). In practical terms, regardless of nationality or the motivations that influence their decisions to enter Switzerland, foreign nationals are subject to the ordinary regime regulated by the FNA. Two special regimes complete the ordinary regime, translated by two exceptions: AFMP and Asylum regimes. Nationals from EU/EFTA member states are subject to the AFMP, whereas persons seeking protection against persecution fall under the special asylum regime regulated by the Asylum Act (AsylA), the Geneva Convention of 1951 and the Dublin regulation (Amarelle and Nguyen 2017). In practice, the FNA is only applied where the AFMP or Asylum legislation do not contain relevant provisions that could be applied in cases where the FNA lays down more favourable provisions (Art. 2 FNA and Amarelle and Nguyen 2017).
To settle in Switzerland, people from third countries must meet very specific criteria (SEM 2017). These criteria differ and correspond to an administrative criteria allocated to immigration reasons. The Swiss foreigners legislation admits:
Selected persons coming for gainful employment, which implies the person settles in Switzerland because she/he has been previously hired and she/he meets the various relatively strict criteria mentioned in the law. Among the range of criteria and factors assessed are the level of specialization and qualification as well as the ability to integrate into Swiss society. Furthermore, the precedence principle must be respected.Footnote 5
People who do not come for gainful employment but for other specific reasons such as rentiers, for medical treatment or to studyFootnote 6 must have sufficient funds to support themselves.
Persons who come for family reunification reasons to join a Swiss or a foreign national with a residence permit. The right to admission by family reunification depends on very specific criteria such as independence from social assistance. The integration dimension is also required and has been reinforced in the Federal Act on Foreign Nationals and Integration (FNIA).
Third-country nationals willing to immigrate to Switzerland for gainful employment face several barriers before being admitted into the territory and having access to the Swiss labour market. They need to have found a job beforehand in order to receive a residence permit. According to the economic interest principle, the Federal Council has the power to limit the number of first-time short stay and residence permits for work purposes (art. 20 FNA). Concretely, in order to regulate the admission of third-country citizens, the Swiss government publishes, at the beginning of each year, the maximum quantity of permits that can be allocated to third-country nationals. Different quotas are allocated to cantons according to their size and needs, while another set of quota (package of permits) is kept at the federal level as a reserve for cantons that have exhausted their quota (Sandoz 2016b, p. 41).
The legislative framework that organises MRAs’ labour, access to territory and integration has faced major changes in recent years. In September 2016, two projects were led the Swiss Parliament to decide on the amendment of the Foreign Nationals Act (FNA). The first concerned the implementation of the aforementioned Art. 121a of the Swiss Constitution on immigration control, resulting from the initiative from February 2014 against mass immigration. The article in the FNA that implements art. 121a Cst. places refugees and temporarily admitted persons in the category of a ‘native workforce’ that ought, from a legal point of view, to be considered as having priority access to the labour market.
The second project focused on provisions to improve the integration of foreigners and to strengthen the application of the already well-established principle of ‘promoting and requiring’ in the field of integration. The amendments came into force in several waves between June 2018 and January 2019. According to the amendments, the foreigner’s level of integration is assessed when renewing his or her residence permit and when applying for a more long term residency permit (Art. 34 para.4 and 5 FNIA Art.42, para.3 FNIA). The amendments legally define four criteria: respect for public safety and order, respect for constitutional values, language skills and participation in economic life or educational training (art. 58a FNIA). Language requirements to obtain and renew residency permits are specified and reinforced according to the status of the permit and the rights related to the permit status.
Long term residence permits (C) can now be withdrawn and replaced by other residence permitsFootnote 7 if the conditions for integration are not met. In these cases, the person whose permit has been downgraded will have to wait 5 years before applying again for a long term residence permit. Also, the changes introduced for family reunification requirements demand: the spouses of holders of a residence or long term residence permit to provide proof of an A1 level orally, or to prove their enrolment in a language course. In addition, the cantons can now conclude integration agreements and set specific objectives for people who do not meet the integration criteria (Stanic 2018). Information concerning the reception of social assistance or unemployment allowance may be taken into account in assessing the level of integration and the payment of supplementary benefits may constitute a criterion for revoking the residence permit of a person without gainful employment or become an obstacle to family reunification. If the use of social assistance was already a reason for revoking the residence permit and sometimes even the long term residence permit, according to the new amendments, the long term residence permits of persons who make long-term and substantial use of social assistance may also be revoked even if they have resided in the country legally and without interruption for more than 15 years. Previously, persons residing in the country for more than 15 years without interruption were protected against this provision. It is important to note that most of the amended provisions do not apply to EU and EFTA nationals, as their stay is regulated by the Agreement on the Free Movement of Persons (AFMP), which does not impose any integration requirements (ibid). With the amendments to the foreigners legislation, Switzerland has introduced a gradual integration model, according to the following principle: the higher the legal status under the law on foreigners, the higher the requirements for integration (Kurt 2017c).
Regarding access for refugees and provisionally admitted persons, the work permit that employers used to have to apply for was replaced by a simple registration procedure that also extended their geographical work mobility within the country. The 10% tax this population had to pay on its income from gainful employment was abolished. In the event of recourse to social assistance, participation in integration programmes has been made compulsory, under penalty of reduction of benefits.
11.2.3 Integration as an Individual Duty and a Policy Priority
To better understand the legal framework for the labour market integration of migrants and foreign nationals linked to the asylum domain, it is important to analyse the concept of integration from the point of view of Swiss law. The integration of the foreign population was already (from 2008) one of the fundamental objectives of the FNA, and was ruled by the specific ordinance on the integration of foreigners (OIE; RS 142 205). Principles of integration were given by article 4 FNA. Chapter 8 of the FNA with art. 53–58 FNA gives more focused provisions on integration, specifically on encouraging integration (art. 53 FNA) and the consideration of integration in the case of decisions, e.g. in the cases of admission or permit granting, where integration is seen as a duty (art. 54 FNA). More specifically, the co-existence of the Swiss and foreign resident population on the basis of the values stated in the Federal Constitution as mutual respect and tolerance, which are the aims of integration. In addition to foreigners’ obligation to participate in the economic, social and cultural life of the Swiss society (art. 4 FNA).
Integration was already crucial in the FNA, where it was emphasized as a requirement and an individual duty of the foreign person. Moreover, in the FNIA the strong connection between work and residence permits is further stressed and a model of gradual integration is introduced, as longer-term residence permits and renewals become linked to progressively stricter integration requirements (Kurt 2017c). Obtaining, extending and being able to keep the various residence permits and family reunification becomes thus possible only if the assessment from the authorities shows that the person meets the conditions for integration.Footnote 8 Additionally, if a foreign person relies on social assistance, an aspect also assessed, may even lead to downgrading or revocation of a permit (Art.62 para 1 let.e, Art. 63 para 1 let. C and Art 63 para2 FNIA).
Next to being promoted as an individual duty, integration is also emphasized as a policy priority that needs to be promoted by authorities at the Confederation, cantons and communal levels (see e.g. specific provisions in art. 53FNA). Art.53 para 3. FNA sets goals of professional advancement and encouragement of foreign population as a major task fulfill by the Confederation, cantons and communes, creating favourable regulatory conditions of equal opportunities for the foreign population. Additionally, in the case of integration, national and local authorities are called to cooperate with social partners, non-governmental organisations and expatriate’ organisations (art.53 para 5 FNA). Among the new elements introduced with the FNIA, we find: the protection against discrimination toward foreign population, the avoidance of underuse of the foreign population potential, the support to basic skills development and registration of unemployed refugees and temporarily admitted persons in public employment agencies. The article also includes provisions for special needs of women, children and adolescents.
The operationalization of the FNIA (art. 54) points to existing ordinary structures at federal, cantonal and municipal level as first instances through which integration must be achieved (these structures are in charge of education and training programs, employment and labour issues, social security, health, among others). The task of ordinary structures in the promotion of integration was previously stated in the former OIE, yet is now enshrined in the foreigners’ act. In cases where gaps exist in ordinary structures or where offers are not accessible, the FNIA provides for a specific integration promotion that can be set at federal, municipal or cantonal level (art. 55 FNIA). In addition, Article 55a. FNIA requires cantons to immediately provide for special integration measures for foreigners with relevant needs hampering their integration (as lack of education and basic labour skills). Finally, the law also clearly specifies the distribution of competences between local and national administrations as well as financial contributions from the Confederation to other administrative levels (art. 58 FNIA).
According to the Swiss Law, immigrants’ social and labour integration is a duty of the ordinary structures, also called ‘established frameworks’, such as the employment offices, welfare or education services. The Swiss state develops integration through the ordinary structures in accordance with their legal mandates and their existing offers and services. However, ordinary structures conceived for the needs of the local population can often not accommodate specific categories of migrants because those migrants do not meet the entry criteria (e.g. level of knowledge of the local language, lack of basic skills, years in the canton as a taxpayer, etc.) and/or the services offered do not suit specific migrants’ needs. Therefore, the Law foresees for a specific provision on the promotion of integration of immigrants, which provides special support to foreigners to develop the required conditions to access existing ordinary structures. The specific provision on the promotion of integration of immigrants was a guiding principle of the former FNA, the new FNIA includes now a specific provision on this matter (art. 55 FNIA). Since 2014, Cantonal Integration Programs (CIPs) have been the policy instrument, which strategically focus on the planning and implementation of the specific provision on the promotion of immigrants’ integration in collaboration with ordinary structures. Those programs are the result of a joint strategy agreed in 2011 between the Cantons and the Confederation. Each Canton established its own Cantonal Integration Program (CIP I 2014–2017 & CIP II 2018–2021) with the purpose of strengthening: social cohesion, mutual respect, tolerance, participation, and equality of opportunities for foreigners living in Switzerland. The programmes aim to strengthen the existing measures, reduce disparities between cantons, to fill gaps while allowing leeway to take local factors into account, and letting the cantons set their own implementation priorities.
Additionally, to further boost integration efforts regarding migrants from the asylum framework, the Confederation and the cantons established recently a joint nationwide integration agenda, the ‘Swiss Integration Agenda’, advanced in spring 2018 and implemented from 2019 provides for binding measures and strengthens individual support and case management for refugees and temporarily admitted persons. Additionally, it increases the lump sum paid by the Confederation to the Cantons to fund integration measures from 6000 to 18,000 Swiss francs per refugee or temporarily admitted person. As explained in SEM’s Migration Report (2018, p. 38), the Integration Agenda foresees certain clearly measurable targets that the Confederation and the cantons should abide with:
All recognised refugees and temporarily admitted persons have basic knowledge of one national language after three years. 80% of children from the asylum system can communicate in the language of their place of residence before they start school. Two-thirds of recognised refugees and temporarily admitted persons aged between 16 and 25 are enrolled in a vocational education and training course within five years. Half of adult refugees and temporarily admitted persons are integrated in the labour market within seven years. All recognised refugees and temporarily admitted persons are within a few years familiar with the Swiss way of life and have contact with the local community. Regular reviews are needed to ensure that these targets are being met and to evaluate the impact that integration measures have had. The decision was therefore taken to develop a monitoring system; its introduction is scheduled for mid-2020.
Future assessments of the implementation of the Integration Agenda will be crucial to assess if and how the Swiss recent approach to integration has indeed functioned as an enabler to MRAs’ labour market integration – and under what cantonal specificities and conditions. ‘Promoting’ and ‘requiring’ are the two keywords of Swiss integration policy from recent years, stating the requirements and individual responsibilities of a foreign person with regard to integration and the policy priorities involving inter alia promotion of equal opportunities (Kurt 2017b).
That said, it is relevant to consider that in practice within a context of Federalism, several acts and law provisions are loosely defined at the federal level: the cantons have a degree of flexibility and discretionality while applying the legal mandates. This is especially the case for decisions on admissions for family reunification, permit extensions and decisions involving integration as a requirement (in decisions for granting unlimited residence permits). For instance, one of the criteria for granting a residence permit to a spouse or child is having suitable housing. Criteria to assess if the foreign citizen has suitable housing can differ according to the cantons (e.g. number of bedrooms). On the one hand, this flexibility allows the cantons to adapt the provisions to its situation and needs. On the other hand, those discretionary margin lead to unequal treatment of migrants according to the cantons (Wichmann et al. 2011). Until 2018, no official definition of integration was provided by the Swiss legislation. When determining the degree of integration of foreign nationals living in Switzerland for permit decisions, the practice shows that cantonal authorities have taken their decisions based on respect for legal order and the values of the Constitution, knowledge of local language and willingness to participate in economic activities and education as well as knowledge of the ‘Swiss way of life’ as mentioned by the Citizenship Act. According to Wichmann et al. (2011), cantonal interpretation and practices diverge from ‘inclusive’ practices that have low requirements with many exceptions to ‘exclusive’ practices with a high requirement and a low number of exceptions. Cantonal differences, give rise to unequal treatment, as in the case for asylum seekers, who, depending on the canton, can easily access the labour market, while in others, the exercise of a gainful activity is subject to certain restrictions. Additionally, several cantons allow asylum seekers to access language courses at an early application stage, while in others they have to wait for a positive decision on their case.
Moreover, according to the law, the integration of foreigners must first be carried out through ordinary structures and since these structures operate differently in each canton, these are additional enablers of social inequalities across cantons.
To sum up, the latest findings of a study of the Swiss Forum for Migration and Population Studies by Probst et al. (2019) into cantonal discretionary powers in migration policy distinguishes two approaches for cantonal practices to tackle integration provisions. The first are restrictive practices, whereby integration is based on individual will and responsibility; this supposes high barriers to immigrants’ rights and privileges, translated into limited offers of support and conditional offers of incentives. The second comprise inclusive practices, which are enablers for immigrants’ access to rights, to extensive offers of support and intensive encouragement of individual capacities, resulting in opportunity-based support and facilitated labour market access. According to the study, preferences are related to contextual factors such as political orientations, demographic factors, economic conditions and the administrative cultures of the cantons. Additionally, services in charge of integration vary according to institutional cultures and the provision of services distribution and responsibility across local structures (e.g. service for immigrant population are in some cases responsibility of the population office, while in others of the security or social affairs office). Therefore the importance and the role of ordinary structures in promoting integration also varies from one canton to another, which is due as well to the lack of presence of some of these specific structures at the local levels (Probst et al. 2019).