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On April 27, 2021, the European Parliament approved the Trade and Cooperation Agreement between the United Kingdom (UK) and the European Union (EU). The agreement entered into force on May 1, 2021 after four months of temporary application.
Cross-border situations that began prior to January 1, 2021
The Brexit withdrawal agreement protects the rights acquired before December 31, 2020 by the member citizens of the states concerned.
As Switzerland is not covered by this European agreement, the rights acquired in Switzerland by nationals of the UK - and inversely - are protected by the Agreement between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on Citizens’ Rights following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons Agreement. This agreement guarantees the maintenance of the rights acquired under the Agreement on the Free Movement of Persons (AFMP) (including annexes).
In accordance with Annex II of the AFMP, assignments covered by an A1 certificate remain valid if the working terms remain unchanged. It is therefore important to consider and plan the impact that a change in working patterns may have on the validity of the A1 certificate.
We underline that UK nationals can benefit from this protection agreement only if they have been authorized to enter Switzerland under the AFMP, which is not the case for legitimation card holders issued by the Federal Department of Foreign Affairs (FDFA) or a Ci permit.
Foreign Nationals and Integration Act (FNIA)
The AFMP, previously applicable to relations between Switzerland and the UK, ceased to apply on December 31, 2020. As a result, access to the Swiss labour market is, since January 1, 2021, governed by national legislation.
In Switzerland, access to the labour market for non-EU/EFTA nationals is governed by the Foreign Nationals and Integration Act (FNIA). The Federal Council has introduced a separate quota for 2021, allowing 3’500 UK nationals to work in Switzerland.
Temporary agreement between Switzerland and the UK on mobility of service providers
Under this agreement, UK-based companies assigning workers to Switzerland as well as UK-based self-employed persons with UK nationality can use the online registration procedure for stays of up to 90 days per calendar year and are therefore not subject to prior labour market examination. The 90-day period can be performed in successive periods with breaks of several weeks or months between each period.
For longer-term secondments, British nationals are subject to the admission conditions of the Federal Law on Foreigners and Integration (FNIA), as for other non-EU/EFTA nationals. They will have to apply for a residency and work permit to the competent cantonal authority before the 90-day registration procedure is completed, as after this 90-day period they will no longer be allowed to work until the permit is issued.
Inversely, it allows Swiss service providers to benefit from simplified admission requirements in the UK.
The agreement applied temporarily since January 1, 2021 and will be submitted to the Swiss Parliament by summer 2021. It is currently limited to a two-year period, renewable by the parties.
Application for a residency permit by British nationals from January 1, 2021
Staying with gainful employment
As of January 1, 2021, the United Kingdom is considered a non-EU/EFTA country and British nationals entering Switzerland for the first time to work are therefore subject to the admission requirements of the FNIA. As they no longer benefit from the facilitated access to the Swiss labour market due to the AFMP from the EU/EFTA, the admission criteria under the FNIA must be met. These criteria include that British nationals must primarily serve the economic interests of Switzerland by meeting the country's needs through the worker's professional knowledge or abilities (qualified employee), compliance with the limits set by the Federal Council on the number of permits granted to non-EU/EFTA nationals (3,500 for 2021 as an indication), as well as the order of priority of workers present on the Swiss labor market or on the EU/EFTA labor market.
Prior to the entry into Switzerland, the employer must submit a work permit application to the cantonal authority responsible for migration or the labour market (of the place of employment). A visa application must be submitted by the employee to the competent authority of the national's place of residence. In case of approval of the compliance with the admission criteria of the FNIA, an authorization to issue the visa is given by the competent cantonal authority to the Swiss representation in the United Kingdom. Once the British national is in possession of the work permit, he/she can go to Switzerland to work. This person will then have to announce his arrival to the competent authorities of the place of stay within a certain period (generally 14 days from the arrival in Switzerland). A national who intends to work in Switzerland must therefore be in possession of a permit regardless of the duration of his stay.
Staying without gainful employment
For a stay of more than 90 days (for family reunification purposes, or as a pensioner for example), it is necessary to hold a permit and to have previously applied for entry (Visa D). This application must be made at least two to three months before the planned date of entry into Switzerland. The application must be submitted to the competent authority of the place of residence of the national (e.g. Swiss diplomatic/consular authority in the United Kingdom). In addition, the applicant must have sufficient resources to ensure his or her financial independence (without having to rely on social assistance in Switzerland) and have a personal attachment to Switzerland (e.g. close relatives in Switzerland).
Once the application for entry has been validated, the individual can travel to Switzerland. This person will then have to announce his arrival to the competent authorities of the place of residence within a certain period (generally 14 days after arrival in Switzerland).
Social security coordination between the UK and the EU (not applicable to Iceland, Norway, Switzerland and Lichtenstein)
Detached workers as of January 1, 2021
The Trade and Cooperation Agreement between the United Kingdom and the European Union determines the legislation applicable to detached workers, for a period of up to 24 months, in a similar way to European regulations.
EU Member States had to decide whether or not to opt into the application of these rules. The countries that have opted in will be listed in Annex SSC-8 of this agreement.
British workers detached by their employer to work in a state that has opted for these rules will remain affiliated to the UK social security system.
Inversely, workers who are members of a European state that has opted for the application of these rules and who are temporarily detached to the UK will remain affiliated to the social security system of their sending country.
Multi-state workers
The rules for employees working in two or more states are also like European regulations. An analysis of the "substantial part of the activity" must therefore be carried out.
However, unlike the rules covering detached workers, these rules are not optional for the states covered by the Trade and Cooperation Agreement.
Social security coordination between the UK and Switzerland
Regulations (EC) no. 883/2004 and (EC) no. 987/2009 on the coordination of social security systems are no longer applicable to relations between Switzerland and the UK since January 1, 2021.
New coordination rules should be defined certainly by October 2021, through a new bilateral agreement, which should take up some of the main principles of the EU rules. Some elements will probably remain divergent, particularly concerning social benefits.
In the meantime, the former bilateral agreement between Switzerland and the UK of 1968 applies on a transitional basis since January 1, 2021.
Detached workers as of January 1, 2021
Paragraph 3 of Article 5 of the bilateral agreement allows assignments in social security matters of up to 24 months for employed workers whose assignments begin after December 31, 2020.
Multi-state workers
Paragraph 1 of Article 5 of the bilateral agreement establishes that contributions are due on income received in each state in accordance with the legislation in force in the state where the activity is performed.
In practice, companies tend to avoid this situation, notably by opting for detachment.
Acquisition of real estate by British nationals living in Switzerland (LFAIE)
In Switzerland, the acquisition of real estate by foreign nationals is restricted by the Federal Act on the Acquisition of Real Estate by Persons Abroad (LFAIE). The authorization regime is a federal measure provided for by the LFAIE which aims at limiting the acquisition of real estate by foreign nationals.
British nationals who have taken up residence in Switzerland prior to January 1, 2021
British nationals who have acquired their residence in Switzerland before this date are not considered as non-EU/EFTA nationals, and are therefore not subject to the LFAIE. Therefore, these nationals will have the same rights as Swiss nationals to acquire real estate and will be able to purchase real estate without being subject to the authorization regime in 2021.
British nationals who have taken up residence in Switzerland after January 1, 2021
As of January 1, 2021, the United Kingdom is considered as a non-EU/EFTA country. A national of a non-EU/EFTA state is not subject to the authorisation regime for the acquisition of a principal residence if
- The national holds a valid residency permit (generally a B permit).
- She or he lives in that property (she/he is domiciled there).
Thus, British nationals having acquired their legal domicile on or after January 1, 2021, who do not meet the above conditions, either because they do not hold a valid residency permit or because they do not intend to be domiciled in the property in question (thus considering this property as a secondary residence), will be subject to the LFAIE. Therefore, they will systematically be subject to a specific authorization from the competent cantonal authorities in case of purchase of a secondary residence.
