Shortage of skilled workers in Switzerland
Initial legal situation
Article 50 of the Swiss Foreign Nationals and Integration Act (AIG) stipulates that after the dissolution of the marriage or the family partnership, the spouse and the children are still entitled to the granting and extension of the residence permit if:
- the marriage relationship has existed for at least three years and the integration criteria pursuant to Article 58a are met; or
- important personal reasons make continued residence in Switzerland necessary (post-marital hardship).
Important personal reasons may exist if the spouse was the victim of marital violence or did not enter into the marriage of his or her own free will, or if social reintegration in the country of origin appears to be at high risk.
According to Art. 40 AIG, the cantons are responsible for issuing and extending permits.
In exercising their discretion, the cantons rely on the directives on entry, residence and the labor market issued by the State Secretariat for Migration (SEM), in particular on the duration of joint residence in Switzerland, as the decisive factor.
The legislative history of Art. 50 para. 1 lit. a AIG thus indicates that a claim to a permit under this provision requires a three-year marriage relationship in Switzerland. The wording of the law does not mention a 3-year marriage duration in Switzerland. The adopted version of the wording of the law is based on the majority proposal of the preparatory parliamentary commission (AB 2004 N 1060).
Whether the Federal Councils assumed that the marriage must have existed in Switzerland during the three-year period cannot be directly inferred from the protocols. However, it is clear from them that the regulation adopted was based on the approval practice of many cantons at the time, namely that of the canton of Zurich (statement by National Councillor Beck for the Commission, AB 2004 N 1064; statement by Federal Councillor Blocher, AB 2004 N 1064).
According to the SEM instructions, the concept of integration has been clarified by judicial practice. Namely, successful integration does not exist if a person cannot earn an income that can support him or herself and is dependent on social benefits for a significant period of time.
In the case of a foreigner who is professionally integrated, who has always been financially independent, who has behaved correctly and who speaks a national language, there must be serious reasons for his integration to be denied. This is the latest novelty of the Federal Supreme Court from a leading decision published in 2022.
Residence and Employment Case Study:
1 Mr. Colombo from Peru has been married to an Italian citizen since September 2019. The two have a child together who has Italian citizenship. In February 2020, the family moves to Switzerland, as the wife had found a job in the canton of Zurich. The family takes up residence in the canton of Aargau.
Mr. Colombo and the child receive a residence permit B for family reunification. A short time later, Mr. Colombo has also found a very good job in the Canton of Zurich. As is well known, spouses in family reunification with a B residence permit are allowed to work without further ado as long as the residence permit is valid and continues in the canton of residence.
After the Corona crisis, there was also a crisis in the Colombo family. The wife is no longer satisfied with her life in Switzerland and leaves for Italy at Christmas 2022 together with the child. The marriage breaks down.
- Key data: Residence in Switzerland: since 01.02.2020
- Return journey spouse: 22 December 2022
- Duration of marriage in Switzerland: 2 years and (just under) 11 months < 3 years.
The Migration Office of the Canton of Aargau revokes Mr. Colombo's residence permit and sets a deadline for his departure. Due to the revocation of the residence permit, Mr. Colombo is no longer allowed to work in the canton of Zurich.
On the one hand, Mr. Colombo has integrated very well in Switzerland and wants to continue living there, on the other hand, if he goes back to Peru, he will not be able to see his child regularly. Mr. Colombo's employer submits a work permit application in the canton of Zurich in order to obtain a (main) permit, i.e., an independent permit. However, this application is unsuccessful.
Mr. Colombo, even if he is a specialist, works in a field that does not have shortages in the sense of current regulations, directives, and statistics. This would be the case, for example, for management positions in information and communication technology, engineering professions, scientists and researchers in the MINT sector, specific professions in the health sector and teachers at universities.
For employers, this means that the priority of nationals (national interest) must be examined on a case-by-case basis. Serious search efforts for the position in question with domestic applicants as well as with applicants from the EU/EFTA area must be proven. Persons with priority, i.e., Swiss citizens, legal residents in Switzerland as well as EU/EFTA citizens may not be rejected without further ado simply because non-critical or relevant criteria are not met.
Mentioned by the Secretariat for Migration are, for example, the lack of language skills, stays abroad or specialized knowledge that is only slightly related to the job or can be acquired "on the job".
In the case of Mr. Colombo, an appeal is still pending with the competent authority. From a personal point of view, the outcome of the proceedings will most likely be negative, and Mr. Colombo would have to return to Peru.
As for his visitation / custody rights for the child in Italy, he would have to clarify or settle this matter with the Italian authorities.
Characteristics of the work permit procedure for third-country nationals at a glance:
- Advertisement of the job on RAV/EURES (unemployment office for
the labor market in Switzerland and Europe) as well as in other
online recruitment platforms is mandatory, except.
- For shortage occupations: Management positions as well as professions in the STEM sector, health care and teaching staff in universities.
- Exception in case of job notification obligation according to Art. 21a AIG F Publication of the job despite shortage occupation
- Application for work permit in the canton of the place of work
- Verification of admission requirements according to AIG
- National interest, Art. 21 AIG
- Personal requirements, Art. 23 AIG
- Salary and working conditions, Art. 22 AIG
- Discretionary decision = in principle no entitlement
- Obtaining residence permit for the purpose of gainful employment in the canton of residence (usually the same as the canton of employment)
Footnote
1. Name and personal information changed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
