The impact of Covid-19 on immigration to Switzerland

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Anand J Pazhenkottil
Blue Lake Legal, Zurich
anand.pazhenkottil@bluelakelegal.com

Development of the Covid-19 outbreak in Switzerland

As in most of the countries worldwide, the rapid spread of Covid-19 has widely limited public life in and immigration to Switzerland. Being one of the countries most affected by the pandemic due to proximity to badly-hit Italy and its dense population, on 28 February 2020 the Swiss government categorised the situation as ‘special’ as per article 6 of the Epidemics Act and banned large-scale events involving more than 1,000 people. On 13 March 2020 further restrictions such as closure of schools and first entry restrictions for people travelling from Italy were imposed in the hope that the spread could be contained. Shortly afterwards, on 16 March, the Federal Council saw itself forced to declare an ‘extraordinary situation’ as per article 7 of the Epidemics Act. This resulted in the largest army mobilisation in Switzerland since the Second World War and introduced a ban on all private and public events as well as the closing of shops, restaurants, bars and entertainment/leisure facilities until 19 April 2020. In addition, the Federal Council decided to extend checks on the borders to Germany, France and Austria and partially closed the borders to limit immigration from these countries. These drastic measures were deemed inevitable for maintaining the country's capacity to cope with the Covid-19 pandemic and guarantee an adequate supply of care and therapeutic products to Switzerland’s population. Immigration restrictions were widened to further countries on 19 March and 21 March, before being imposed on all countries on 25 March, the sole exception being the Principality of Liechtenstein.

As of 13 April 2020, Switzerland counts more than 25,000 cases of confirmed infection and over 1,100 fatalities.

Entry restrictions for people travelling to Switzerland

As a result of the immigration restrictions imposed, all persons who wish to enter Switzerland (except those entering from Liechtenstein) shall in principal be refused entry. This is applicable in particular to persons who wish to obtain services in Switzerland, tourists, visitors as well as participants in events. The only exception of persons permitted to enter Switzerland are individuals who meet at least one of the following requirements in accordance with Article 3, paragraph 1 of the Ordinance on Measures to Combat the Coronavirus (the 'Covid-19 Ordinance 2'):

• they are Swiss citizens;
• they have a valid travel document; and
• a residence document, in particular a Swiss residence permit, a cross-border commuter permit, a visa issued by Switzerland for the purpose of attending professional consultations as a health sector specialist or to make an official visit of vital importance,
• the assurance of a residence permit;
• they have rights under the Agreement on the Free Movement of Persons, have a work-related reason for entering Switzerland and can provide a confirmation of notification (Meldebestätigung/attestation d’annonce/attestato di notifica);
• they are transporting goods for commercial purposes and can provide a bill of lading for the goods;
• they are simply travelling in transit through Switzerland with the intention of going directly to another country that they are permitted to enter;
• they are in an emergency situation (eg, death of a close family member in Switzerland, already started medical treatment in Switzerland that cannot be postponed etc); or
• they are a specialist in the healthcare sector and need to enter Switzerland for important professional reasons.

Restrictions for EU/EFTA nationals

Although Switzerland is not part of the European Union, a bilateral agreement between the EU and Switzerland guarantees the free movement of persons between the territories of EU countries and Switzerland since June 2002. In 2004, Switzerland signed an association agreement with the signatories of the Schengen Agreement to become part of the Schengen Area. For the first time ever since, Switzerland has now applied the legal provisions as per annex 1, Article 5 of the Agreement on the Free Movement of Persons (AFMP) to restrict rights granted under the provisions of said agreement. It is also the first time for Switzerland to invoke Article 28 of the Regulation (EU) 2016/399 (Schengen Borders Code) in order to reintroduce border control based on a serious threat to public policy or internal security.

As far as restrictions on the free movement of persons are concerned, no changes will occur for persons holding an existing residence permit or a cross-border permit. However, rights guaranteed in the AFMP will be restricted for persons who wish to enter Switzerland for the first time and do not have a permit as they are prohibited from entering the country. Persons with a confirmation of notification (Meldebestätigung/attestation d’annonce) or an assurance of a residence permit may – as per the guidelines of the State Secretariat for Migration – enter Switzerland only if the purpose of their entry serves an overarching public interest. The cantonal authorities are instructed to refuse the issuing of the said documents if the foreigner’s work activity does not serve a public interest.

Around 330,000 cross-border commuters, mainly from the neighbouring countries, work in Switzerland. As per the Covid-19 Ordinance 2, these people may continue to enter Switzerland. However, the purpose to enter Switzerland has strictly been limited to work-related travel. As a result of the reinforcement of border control, cross-border commuters will be checked when crossing the border and entry is only possible at a limited number of borders.

Restrictions for Non-EU/EFTA nationals

In the matter of mobility of non-EU/EFTA nationals, the Federal Council decided on 19 March 2020 to suspend the issuing of Schengen visas, national visas and the authorisation to issue visas until 15 June 2020. New visa applications at Swiss representations abroad as well as new applications for work permits at the cantonal authorities shall not be treated during this time. National D-visas may continue to be issued provided that the authorisation to issue the visa has been granted by the cantonal authorities on or before 18 March 2020. Exempted from the mentioned restrictions are applications from persons in emergency situations or specialists in the healthcare sector and need to enter Switzerland for important professional reasons.

Persons who cannot use their already-obtained visa for Switzerland due to travel difficulties or the entry ban can apply for a new visa if they wish to enter at a later date. A new application with the complete set of documents needs to be submitted for this and valid travel health insurance must also be available. In view of the fact that a visa has already been issued once for the same purpose of travel, it is expected that a reasonable amount of goodwill will be shown in the reassessment within the first months after the travel restrictions have been lifted.

Measures in light of restricted travel possibilities

Considering the fact that in the meantime, several airlines have ceased operations on certain routes, the Swiss government has also issued instructions relating to foreigners who are unable to leave the country as intended.

Persons who are unable to leave Switzerland or the Schengen Area due to the current situation before the expiry of their visa or residence permit, or before the expiry of the maximum valid stay of 90 days within the permit-free framework, and who have no other means of return, may stay in the Schengen Area until air traffic returns to normal. Persons affected are recommended to report to the relevant cantonal migration offices in the canton of their current stay in order to regulate their stay. An overstay in the Schengen Area due to these circumstances will not be regarded as overstay by the Swiss border control authorities.

Persons who have to leave the international transit zone until they can take their onward flight and persons who cannot return to their place of residence via airline but are forced into road/rail transit must be issued with a new Schengen visa. Travel documents valid for less than three months are also accepted; no travel health insurance is required.

Outlook

Although some countries have started to ease some of the drastic measures taken in connection with the Covid-19 pandemic, and the Swiss government is aiming for a gradual loosening of the measures from the end of April, there is still a long way to go before things return to normal. It seems likely that measures at local and national level will be eased first, meaning that a rapid relaxation of entry restrictions on a large scale seems rather unlikely at this time. As the pandemic is spreading at different speeds around the world, both private and business travellers are likely to have to cope with restrictions in international mobility for several weeks or even months to come.

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