FAQ Brexit

Following the United Kingdom’s departure from the EU, the Free Movement of Persons Agreement (FMOPA) with the EU will no longer apply between Switzerland and the United Kingdom (UK). The agreement is intended to protect the residence rights (and other rights) of Swiss and British citizens acquired under the FMOPA. With this agreement these rights are preserved beyond Brexit. The agreement thus provides legal certainty for these persons.

Swiss and British nationals wanting to immigrate after the end of the FMOPA are not covered by the present agreement (see question 12). Family reunification remains possible under this new agreement.

The agreement will come into force as soon as the FMOPA no longer applies between Switzerland and the United Kingdom. This will be after the end of the transition period agreed between the EU and the UK, i.e. probably on 1 January 2021.

The EU and the United Kingdom have to ratify the withdrawal agreement before there can be a transition period. This process has not yet been completed.

The withdrawal agreement between the EU and UK has therefore an impact on when this agreement on the citizens’ rights comes into force.

Switzerland is not a party to the withdrawal agreement between the UK and the EU. The withdrawal agreement regulates relations regarding immigration between the EU and the UK. Switzerland and the UK have thus drawn up their own bilateral agreement on their citizens’ rights.

The agreement protects FMOPA-rights acquired before the FMOPA ceases to apply between Switzerland and the UK. Some of the areas covered by the new agreement are:

  • Residence with gainful employment (employed and self-employed)
  • Residence without gainful activity
  • Right to family reunification
  • Employment in Switzerland as a cross-border commuter
  • Continuation of service provisions (up to 90 days per calendar year) in the other party by companies and self-employed persons domiciled in Switzerland or the United Kingdom
  • Principle of non-discrimination
  • Right to purchase immovable property

You’ll find further information on social security and the recognition of professional qualifications on the websites of the Federal Social Insurance Office and the State Secretariat for Education, Research and Innovation.
Federal Social Insurance Office 
State Secretariat for Education, Research and Innovation

The rights acquired under this agreement are valid indefinitely, provided the conditions stipulated in the agreement are met.

There are four major differences between the FMOPA and the bilateral agreement between Switzerland and the United Kingdom on the rights of citizens:

  1. Before issuing a new short-stay permit, residence permit or border commuter permit, the competent authority may require Swiss and British nationals to produce an extract from the criminal records register.
     
  2. Offences committed after the FMOPA ceases to apply will be assessed according to the rules of the Foreign Nationals and Integration Act (FNIA), as is the case for non-EU/EFTA nationals. For convictions, the penal provisions with regard to expulsion apply.
     
  3. Five years after the FMOPA ceases to apply, the reunification of future spouses will be regulated by the provisions of the FNIA. These provisions are somewhat stricter than the FMOPA rules. For example, a person must prove that they have sufficient financial means to pay their own and their family members’ living expenses.
     
  4. The preferential market access for person-related service provisions under the FMOPA (90 days per calendar year) is no longer applicable to provision who start after the FMOPA. Those services fall under the conditions of the General Agreement on Trade in Services (GATS) of the WTO. Service provisions which started during the application of the FMOPA can be concluded under the terms of the FMOPA.

Rights can be acquired for as long as the FMOPA still applies between Switzerland and the UK.

The EU and the UK have agreed a transition period which is due to run until the end of 2020. If this transition period is implemented, the FMOPA will still apply between Switzerland and the UK. This means that FMOPA rights could be acquired at the latest by 31 December 2020.

For the transition period to be implemented, the EU and the UK must ratify the withdrawal agreement. This process has not yet been concluded.

Swiss nationals living in the UK will be required to apply online to the EU Settlement Scheme to obtain a new immigration statusThis application scheme will open fully by 30 March 2019. The deadline for applying will be 30 June 2021. Without the transition period, the deadline will be 31 December 2020. This obligation exists even for those who already hold a valid residence title in the UK. Please find more information on the Settlement Scheme here:
GOV.UK

UK nationals living in Switzerland who obtained a short- or long-stay residence permit before the FMOPA ceased to apply and are therefore registered in a commune do not generally need to take any action. The same applies to persons with an EU/EFTA cross-border commuter permit.

There is, however, a possibility that UK nationals with a valid residence permit may be called upon to exchange their current permit for another. This would not affect their existing right to remain, as long as the person concerned continues to meet the relevant residence requirements under the FMOPA. If they are not called on to exchange their permit, they must simply apply for a new permit before their existing one expires, as usual.

In Switzerland. the cantons are responsible for issuing residence permits. The issuing authorities in each canton can be found here:
Cantonal immigration and labour market authorities

The acquired rights are lost, if the terms of this agreement are no longer met.

Example 1: A UK national who gives up their residence in Switzerland by announcing their departure to another country cannot ‘reactivate’ their acquired right at a later stage. Without announcing the departure, short-stay permits and residence permits expire after absences from Switzerland of more than six months. Upon request, the settlement permit can be maintained for four years in case of absences from Switzerland.

Example 2: A person who commits a crime and poses a threat to public order after the FMOPA ceases to apply may lose their acquired residence rights based on the somewhat stricter provisions of the FNIA.

Example 3: British employees in Switzerland who become unemployed can stay in Switzerland while drawing unemployment benefit. After their entitlement to unemployment benefit expires, they must either find gainful employment or meet the requirements of another residence category (e.g. as a non-employed person) under the FMOPA in order to stay in Switzerland. Otherwise they will lose their acquired residence rights. See the factsheets on the different residence categories on the SEM website:
Free Movement of Persons Switzerland – EU/EFTA: Factsheets

The agreement was approved by the Federal Council on 19 December 2018. Next, the competent parliamentary committees in Switzerland will comment on the possible provisional application of this agreement. The agreement will then be signed. As usual, the Federal Assembly will also have to approve the agreement. At the end of this approval process, the agreement will be subject to an optional referendum.

When the agreement comes into force depends on the implementation of the EU-UK withdrawal agreement. In the withdrawal agreement, the two parties have agreed on a transition period until the end of 2020. During this transition period, the FMOPA will also continue to apply between Switzerland and the UK and will only cease to apply after the end of the transition period. This agreement on citizens’ rights would therefore come into effect on 1 January 2021.

Swiss and British nationals wanting to immigrate to Switzerland or the UK after the end of the FMOPA are not covered by the present agreement.

Unless an additional bilateral agreement between Switzerland and the UK is concluded, UK nationals wanting to immigrate to Switzerland after the FMOPA ceases to apply must meet the terms of the Foreign Nationals and Integration Act FNIA. They would be subject to quotas in such a case.

Switzerland and the UK discuss the future immigration regime between the two countries. The exact design of this future regime has not yet been decided. An agreement regarding immigration after the FMOPA ceases to apply has to respect the constitutional provisions in Switzerland (i.e. Art. 121a of the Federal Constitution).

Currently, a revision of regulation (EU) 2018/1806 is being prepared at EU level. With the revision of this regulation, citizens of the United Kingdom are exempted from visa requirements for a short-term stay (90 days in any 180-day period) for the Schengen area (therefore including Switzerland) also in case of a no-deal withdrawal.

For further information:
Passport rules for travel to Europe after Brexit
(GOV.UK)

In case of an orderly withdrawal from the EU based on the negotiation agreement, the current provisions apply during a transition period until 31.12.2020. This means that also in this case, citizens of the UK who are currently Union citizens do not need a visa to travel to Switzerland.

For citizens of the UK travelling to Switzerland for a short-term stay (duration of no more than 90 days in any 180-day period), the entry conditions for such persons are as follows:

  • they are in possession of a valid travel document entitling the holder to cross the border under following conditions (list of travel documents authorizing entry into Switzerland):
    • - they must hold a recognised travel document valid for at least three months after the intended date of departure from the Schengen area and issued within the previous ten years (the date of issue concerns only entry into the Schengen area);
    • - if the person possesses a residence permit of a Schengen country (list of residence permits issued by Member States) or a valid type D visa (national visa; if requested by a Schengen state), the travel document shall be valid at the time of entry and during the planned stay.
  • they must explain the purpose and conditions of their stay in Switzerland and/or in the Schengen state(s) they intend to visit;
  • they must have sufficient financial resources to cover the entire duration of the intended stay as well as the return trip to their country of origin or a transit trip to a third country, or they must be able to obtain the necessary financial resources by some other lawful means;
  • they must not be the subject of an alert issued in order to prevent them from entering Switzerland;
  • they must not pose a threat to Swiss security, public order, public health or the international relations of any of the Schengen states;
  • they may not have been sentenced to expulsion from or refusal of entry to Switzerland.

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