The forthcoming modernisation of the Foreign Nationals and Integration Act ("FNIA") could have an impact on residence permits for foreign nationals. In view of the planned changes in the area of gainful employment and the granting and expiry of residence and settlement permits, a reassessment is required.
The consultation on the modernisation of the FNIA has already been opened. The current discussion not only provides for minor adjustments, but also significant changes that are intended to take account of developments in the area of migration.
Centre of vital interests when granting a permit
A central point concerns the centre of life, especially when renewing residence permits and also when issuing permits. The discussion about this is based on the current practice of the Federal Supreme Court, which is perceived as a relaxation of the concept of the centre of vital interests. According to this, an examination of the centre of vital interests as a prerequisite for a permit cannot be carried out separately from the conclusively regulated grounds for expiry, namely leaving Switzerland for six months and de-registration abroad. There are calls for the principle of the centre of life to be clearly defined and applied. Although the actual centre of life supply in Switzerland is currently a prerequisite for the granting of a residence permit, this requirement is not explicitly stipulated by law. The planned amendment to the AIG should now explicitly enshrine this requirement.
In future, the centre of vital interests would therefore be of decisive importance when issuing and renewing residence permits. This is determined by the totality of the external circumstances from which the vital interests can be recognised and must be demonstrably located in Switzerland. The transfer of the centre of life abroad would therefore lead to the expiry of the permit in future.
Exceptions to this rule would apply to temporary stays in Switzerland (e.g. for the purpose of training or medical treatment), short-term residence permits, and cross-border commuter permits, as these do not require a centre of vital interests in Switzerland. EU/EFTA nationals based on the Agreement on the Free Movement of Persons ("AFMP") and UK nationals based on the Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on the rights of citizens following the withdrawal of the United Kingdom from the European Union and the abolition of the Agreement on the Free Movement of Persons would also be exempt.
Switch to self-employment
Another important aspect concerns the change to self-employment. Until now, Switzerland has imposed strict requirements on licences for self-employment. In particular, the requirements regarding the overall economic interest to be fulfilled and the necessary financial and operational prerequisites are classified as high.
Comparable criteria for granting licences are also applied in other European countries; however, in contrast to Switzerland, numerous countries provide for the possibility of simplified licences. The aim is therefore to abolish the authorisation requirement for changing from an employed to a self-employed occupation. This would grant holders of a residence permit full professional mobility from the outset. In addition, the possibility should be created of linking a residence permit to the condition that no change of gainful employment may take place for a certain period of time.
Here too, EU/EFTA nationals and UK nationals are excluded from the proposed changes.
The abolition of the authorisation requirement aims to reduce administrative hurdles and uncertainties in connection with the overall economic interest and to strengthen the promotion of innovation in Switzerland. The aim is to improve economic integration opportunities for the individuals concerned and to improve the long-term prospects for qualified skilled workers to remain in Switzerland.
The forthcoming modernisation of the FNIA thus offers an opportunity to adapt the authorisation policy to current needs and to strengthen long-term integration into the Swiss labour market and Switzerland's competitiveness.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.