Switzerland Update: Activation of the safeguard clause – access restriction of Croatian workers from January

From 1 January 2023, the access of Croatian workers to the Swiss labour market will be restricted, this applies to both self-employed and employed workers. The Additional Protocol to the Agreement on the Free Movement of Persons with the European Union (“AFMP”) on Croatia contains a safeguard clause (“safeguard clause”) that allows Switzerland to unilaterally reintroduce authorisation quotas for a limited period of time if immigration from Croatia exceeds a certain threshold. The threshold is reached when the number of permits issued is more than 10 percent above the average of the past three years.

The Federal Council is making use of this safeguard clause by amending the Ordinance on the Free Movement of Persons of 16 November 2022 (“VFP”) (press release, explanations). This means that the following permits will be available for Croatian workers in 2023:

• B permits (stays of five years): 1,150 new permits
• L-permits (short-term stay usually < 1 year): 1,007 new permits

Background
The Additional Protocol to the FTA, which extends the AFMP for Croatia, has been in force since 1 January 2017. This provides for the gradual opening of the Swiss labour market for Croatian nationals. The full free movement of persons has been in force for Croats since 1 January 2022 (press release). The AFMP provides for a safeguard clause that allows the introduction of licence quotas if the number of licences issued is more than 10 per cent above the average of the past three years.
In 2022, the requirements of the safeguard clause provided for in the AFMP were met: In the first ten months of 2022, 2,413 B licences were issued, although the threshold for 2022 is 178 licences (annual average for the years 2019-2021: 162 B licences).
According to the Federal Council, the strong immigration of Croatian nationals is partly due to the rapid economic recovery following the Covid-19 crisis. In the secondary sector, the majority of Croatian workers are in demand in manufacturing and construction. In the tertiary sector, there was a particular need in hotels and restaurants, commerce and job placement. An increase in the Croatian workforce was also recorded in areas such as planning, consulting and IT services.

Exemptions from the quota obligation
The following Croatian
nationals are exempt from the maximum numbers (amended Art. 12 VFP):

• Those for whom the admission requirements under Art. 30 of the Aliens Act and Integration Act (FNAI) have been waived (e.g. to regulate gainful employment within the framework of family reunification, or transfer of members of senior management and indispensable specialists);
• Those who are granted an EU/EFTA residence permit on the basis of Article 27(3)(a) AFMP in Annex I (persons who previously held a fixed-term employment relationship for at least 30 months automatically have the right to enter into a permanent employment relationship);
• Those who perform a special international function pursuant to Art. 43 para. 1 let. e-h of the Ordinance on Admission, Residence and Employment (VZAE) (e.g. employees of companies whose place of employment or work is in Switzerland in the context of the performance of a public mandate or qualified persons employed by foreign official bodies who perform tasks laid down in bilateral agreements for the benefit of foreign employees);
• Those who work as doctoral candidates or postdocs at a Swiss university;
• Those who also have Liechtenstein citizenship.

Are you interested in obtaining a work and residence permit in Switzerland? If you have any questions about work and residence in Switzerland, our immigration team will be happy to help.

By Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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