Dr. Eduard Gnesa: The new immigration law

The increasing internationalization of the division of labour on the Swiss la­­bour market has lead to a growing pro­­por­­tion of superior jobs requiring high skills in Switzerland. At pre­­sent, one in four per­­sons employed1 in Swit­zerland is a for­­eigner – often in key po­­­sitions and contributing to the competitiveness of Swiss companies on the global market. Es­­pe­cially with re­gard to foreign companies settling and establishing themselves in Swit­zerland, it is important to be able to draw in foreign managers and specialists.

More than half of the foreigners who came to Switzerland in 2007 did so for work2; 88 per cent of them came from EU-27/EFTA states3, and twelve per cent from non-EU/EFTA states4. The employment of foreigners has a key qualitative and quan­­­­titative significance for the Swiss la­­bour market. The current economic de­­ve­­lop­ment and long-­term de­­mo­graphic per­­spectives point to the fact that, in coming years, em­­­­ployers will have to depend on a high number of skilled and productive la­­bour­­­ers to take part in a growing eco­no­­my.

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EU/EFTA citizens: free movement of people
The agreement on the free movement of people simplifies the living and work­­­­ing conditions of EU citizens in Swit­zer­­land. Employers can take on workers from EU/EFTA states with minimal ad­­mi­­nis­trative constraints, since they are equal to the Swiss on the labour market. Euro­­­­peans who have entered Switzerland on the ba­­sis of the free movement of people often possess good to excellent skills. Like­wise, many long-term immigrants from EU-27/EFTA states – and especially from Germany – work as entrepreneurs, directors, and managers5.
The free movement of people is comple­­mented by a mutual recognition of edu­­cational degrees, the right to own real estate, and the coordination of so­­cial security systems. The low level of le­­gal and administrative hurdles makes the decision to migrate easier for work­­­ers and enhances their mobility and flexibility. Experts believe that the economic growth of the past years was made possible by the free movement of people.

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Non-EU/EFTA citizens: work permit based on the federal immigration law (AuG)
For third country nationals (non-EU/EFTA citizens) to obtain a work permit re­­quires job skills not available on the do­­mestic labour market and in the EU/EFTA space. Thus, only highly skilled work­ers obtain a permit. More­­over, they must be paid commensurate to their position and qualification. The qualification may have been obtained at college, through work experience or in various levels of spe­­cialization.

One of the main novelties in the law that came into effect on 1 January 2008 con­­sists of a better legal status as well as improved professio­n­­al and geographic mo­­bility in Switzerland for foreigners with a residence authorization.
Be­­com­ing self-employed is also possible, provided the necessary business and fi­­­­nancial conditions are met. This is a way to re­­duce bureaucratic hurdles for skilled workers, specialists and man­­ag­ers from third countries. Thanks to increased mobility on the labour market, workers can be at­­tracted to areas where there is a demand. Access to em­­ployment for family members of foreigners integrated into the Swiss la­­bour market for the long-term has also been eased.

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The new immigration law further ex­­pressly allows companies and re­­search institutes in Switzerland to re­­cruit foreign graduates of Swiss universities, re­­gardless of the domestic and EU/EFTA labour market. This regulation mainly re­­gards highly skilled scien­­tists and en­­gineers in areas in which they can prac­­tise their acquired skills at high levels of em­­ployment and in which there is a de­­mand for employees.

Improved labour market structure and lasting economic development
The proportion of skilled foreigners with tertiary education has continually risen over the past twenty years. While a good twelve per cent had such education in 1990, it was already more than 18 per cent in 2000.

Parti­cu­­larly since the end of the nine­­ties, there has been a significant rise (over 100 per cent) in the proportion of immigrants with tertiary education. In parallel, the proportion of unskilled workers among new immi­­grants has dropped significantly since the nineties.

With the continuation of the dual permitting system, access to the Swiss la­­­­bour market remains strongly market-driven. The individual employer takes a central role in the two-stepped canto­n­­al/federal permitting procedure. Work permits for new immigrants from third countries are handed out under the condition that there is an actual em­­ployment offer with a specific job position and des­cription.

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Thus, the main objectives of the new immigration law, when it comes to the labour market, is to equalize the em­­ploy­­ment situation and to improve the labour market structure by means of a long-term integration of foreign work­­ers into the Swiss labour market. The results are not only positive socio-po­­­litical impulses, but also a lasting eco­­nomic development.

The permitting conditions for third coun­­try nationals, as defined by the new im­­migration law, in addition to the pa­­ra­­llel measures from the agreement on the free movement of people, are pro­­tecting job seekers against wage and social dumping. This is how Swit­­zer­­land remains attractive to skilled work­­ers, in particular.
That, in turn, enables companies to re­­cruit the best employees to fill their available positions.

Flexible and efficient permitting
Despite the two-level cantonal/fede­­ral procedure, the Swiss permitting system for third country nationals has proven to be quick in international com­­parisons. Fully documented appli­­­­­cations for people who correspond to the above criteria are approved in as little as a few days. Such a transparent permitting system also enables small and medium-sized enterprises to plan their personnel recruitment efficiently. Thanks to its transparency and dependability, the mi­­­gration as­­pect of the federal labour market policy has the confidence of both businesses and the population. Thus, the immigration policy is well prepared for the challenges of the coming years.

Portrai-E.-GnesaDr. iur. Eduard Gnesa (*1952) studied law in Fribourg and Geneva, and ob­­tained a doctorate. In 2001, after various activities at the University of Bern and in the federal administration, he be­­came the head of the federal agency for immigration, integration and emigration. Since 2004, he has been the director of the new federal agency for migration.