Written by Richard Yorke, international family law barrister in London and Zurich
True to its word, the Swiss government’s “Mind the Gap” strategy (assumed to have been thought up by Swiss Foreign Ministry aid when passing through Bank station) reached an agreement on 20th December 2018 with the UK government to secure the reciprocal rights of Swiss and UK citizens currently ensconced in the 1999 AFMP (Agreement on the Free Movement of Persons) between the EU and Switzerland. The AFMP of course ceases to be effective in public international law between the UK and EU on the date of the UK ceases to be an EU member state, just recently extended under Article 50 TEU beyond the 29th March 2019.
The UK has also convened in recent weeks similar agreements with the other European Free Trade Area (EFTA) states (Norway, Iceland, and Liechtenstein); given the £30 billion per annum trade between the UK and Switzerland, this agreement is the most significant. It was also followed up with a trade agreement concluded between the two States on 11th February 2019.
The importance of the UK-Swiss agreement is brought into sharp focus with the ongoing constitutional crisis in the British Parliament over the withdrawal arrangements with the EU following Brexit. This agreement plugs the regulatory gap that was of increasing concern to Swiss and British citizens as to their reciprocal legal status following the UK leaving the EU.
The agreements have yet to be ratified by either the Swiss Federal Parliament or the British Parliament, but both are expected to be passed into law within the coming months at the juncture of the UK leaving the EU or ratifying a withdrawal agreement. In the UK legislation, this will be legislated for through the EU (Withdrawal Agreement) Bill, which it is imagined will be passed as emergency legislation if parliament fails to ratify either the current EU-UK Withdrawal Agreement or any other withdrawal agreement.
This UK-Swiss agreement is significant for several reasons. Firstly, this agreement will take effect either under a deal or no-deal scenario i.e. the agreement is effective on the date of the UK leaving the EU if no deal, or on the end date of any transitional period if a withdrawal agreement is ratified. These reciprocal arrangements for Swiss and British citizens therefore ensure a far higher level of continuity and certainty for the affected British and Swiss citizens than British citizens residing in EU members states or vice-versa.
Secondly, the principal provisions ensure the continuity for citizens who already have existing rights under the AFMP (Article 10); the basic framework of the agreement is to take the residence, working and property rights contained in the AFMP and then replicate for Swiss citizens residing in UK. These rights are specifically extended by the agreement on the spouses and dependent children and family members of citizens or workers (Articles 18 and 19). Therefore for instance, the existing rights for British citizens to obtain permanent residence status (C-permit) status after 5 years residence in Switzerland are preserved in Article 14.
Thirdly, this extends to the rights of British citizens as B-permit or C-permit holders to purchase property within Switzerland, and to retain that property following UK ceasing to be an EU member state, as contained in Article 22.
However, the fact that the rights conferred in the agreement apply only to those citizens with pre-existing rights before the date of Brexit has been highlighted by subsequent events following the conclusion of this agreement. Up until this point under AFMP an unlimited number of British workers could obtain temporary Swiss B-permit status to work in Switzerland, as EU / EFTA member states under the AFMP lie outside the quota system.
As a taster of the new world the UK enters post Brexit, the Swiss Federal Council on 13th February 2019 introduced a temporary quota of 3,500 new visas for British citizens seeking work in Switzerland in 2019, which would have been effective as 29th March 2019 (the original Brexit date). Although this is a significant quota, given that the total Swiss federal quota for non-EU/EFTA work visas is 8,500 this temporary high number is likely to be far more restricted in subsequent years, barring a further reciprocal agreement between UK and Switzerland.
Coram Chambers are pleased to have launched an annex in Zurich, Switzerland this week and will be providing family law and private client advice to clients across Switzerland. Our international family law barristers represent clients and undertake advisory work on matters in the UK and abroad which involve multinational parents, government legislation, division of complex assets, or the movement of children.