Swiss accept initiative to “Stop Mass Immigration”: Legal Implications (Part I)

Two weeks ago, a bare majority of the Swiss population approved an initiative designed to “Stop Mass Immigration”. The initiative introduces a quota system, limiting the number of residence permits granted to foreigners and asylum seekers. The initiative’s approval raises a number of legal and political questions. These concern the 1999 Agreement on the Free Movement of Persons between the European Union and Switzerland, the future exercise of political rights, and the interpretation and legal implementation of voting-results within Switzerland and beyond.

These aspects will be discussed in a series of three posts. The first part (this post) introduces the referendum itself and briefly explains what happened so far and what will happen next. The second part, authored by Dominik Elser, considers the implications of the referendum on the bilateral relations between the EU and Switzerland. In the final part, Matthias Uffer evaluates the wider consequences of the referendum for future referendums in Switzerland.

I.       The text of the initiative

Currently, there is no official English translation of the initiative’s text. A French, German and Italian version of the text can be found here. The forthcoming translation, based on the German text, is provided by the present author:

I.

The Federal Constitution is amended as follows: 

Art. 121 Subject heading (new)

Legislation on foreigner and asylum affairs

Art. 121a (new) Regulation of Immigration

1 Switzerland regulates the immigration of foreigners independently.

2 The number of residence permits issued to foreigners shall be limited to annual maximum numbers and shall be subject to a quota system. The maximum numbers shall apply to all permits issued pursuant to immigration laws and shall include the asylum system. The entitlement to permanent residence, to family reunification and to social benefits can be restricted.

3 The annual maximum numbers and the quota system for employed foreigners are to be determined in accordance with the overall economic interests of Switzerland and taking into account that Swiss nationals receive preferential treatment; frontier workers are to be included in this consideration. Decisive criteria for the granting of residence permits shall include in particular requests of employers, the ability to integrate and the availability of sufficient and independent means of subsistence.

4 No international treaties may be signed, which violate this provision.

5 The law shall regulate the details. 

II.

The transitional provisions of the Federal Constitution shall be amended as follows:

Art. 197(9) (new)

9. Transitional provisions regarding Art. 121(a) (Regulation of Immigration)

1 International treaties, whose provisions contravene Article 121(a) are to be renegotiated and shall be adapted within three years of the adoption of that article by the people and the cantons.

2 In case the implementing legislation giving effect to Article 121(a) has not entered into force within three years of the acceptance of that article by the people and the cantons, the Federal Council shall enact provisional measures by ordinance.

The “Argumentarium” of the initiative’s supporters (most importantly, the Swiss People’s Party) explains that Art. I(1) of the initiative expresses the view that Swiss decisions on immigration should not be made by foreign courts or in accordance with foreign rules. With respect to Art. I(2), they observe that a combination of annual fixed numbers and a quota system was chosen to allow for different fixed numbers for different categories of foreigners. For example, the maximum number of admitted asylum seekers may be lower or higher than the maximum number of short-time residents. Further, the reference to the asylum system was included to avoid the possibility that the quota system and annual numbers could be bypassed through applying for asylum. The supporters also maintain that “real refugees” remain welcome in Switzerland, but that economic migrants should not be able to claim asylum.

According to the Argumentarium, Art. I(3) is designed to prioritise Swiss interests over those of the individual applicant for a residence permit and to discontinue the “nonsensical” distinction between EU-citizens and third country nationals. To optimise the flexibility of the new quota system, the initiative’s supporters advocate a point-system which would grant applicants certain points on different scales (e.g. ability to integrate, special qualifications etc). Applicants would be entitled to apply for a residence permit once they gained a certain number of points.

Regarding Art. II(1) the Argumentarium expressly refers to the Free Movement Agreement with the European Union and to the European Convention on Human Rights (ECHR). While the former would have to be renegotiated, the supporters do not believe that the provisions of the ECHR would be engaged as they allow for the limitation of the free movement of persons.

Before the international and domestic aspects of the initiative will be considered, we shall briefly turn to the legal history of the initiative and the legal consequences of its outcome within Swiss law.

II.             The legal history of the referendum within Swiss law

The vote of 9 February 2014 was prompted by a “popular initiative requesting a partial revision of the Swiss Federal Constitution in specific terms” (Art. 139, Federal Constitution of the Swiss Confederation). A popular initiative leads to a state-wide referendum upon the collection of 100,000 signatures favouring the initiative’s proposal within 18 months of the official publications of the initiative’s text (Art. 139(1)). In this case, the initiative was published on 12 July 2011. Just seven months later, on 14 February 2012, representatives of the Swiss People’s Party submitted 135 557 signatures in support of their initiative.

As with any other popular initiative, the Swiss government (the Swiss Federal Council) subsequently considered the proposal and evaluated whether the initiative is valid to the extent that it complies with the requirements of consistency of form, subject matter, and, interestingly, with any applicable ius cogens norms of international law. The Federal Council then issued a non-binding recommendation to be taken into account by the two Swiss chambers of parliament when deliberating upon their own recommendation to either accept or reject the proposal.

The Federal Council determined that the proposal satisfied the formal requirements. In regards to ius cogens norms, the government observed that the ius cogens norm of non-refoulement was engaged. The initiative’s text was nonetheless valid as the text could be interpreted in harmony with the non-refoulement principle. Ultimately though, the Federal Council recommended that the proposal should be rejected. It dismissed the arguments of the supporters concerning the detrimental impact of unregulated immigration on the country’s infrastructure, environment, economy and social benefit system. Rather, the government’s view was that the initiative would negatively effect the Swiss economy and lead to an increased bureaucratic burden on public authorities. Additionally, it argued that the proposed quota system was an unsuitable instrument to address the challenges of immigration. 

Next, the two chambers of Switzerland’s parliament, the Federal Assembly, considered the proposal. The two chambers, the Council of States and the National Council, are tasked with issuing a recommendation to the people and to the Cantons as to whether to accept or reject the proposal (or, where applicable, whether a counter-proposal should be favoured). The decision of the two chambers must be unanimous. On 27 September 2013, the Federal Assembly recommended to reject the proposal.

Following the Federal Assembly’s recommendation, the Swiss Federal Council then has to set a date to hold the referendum. This must occur no later than 10 months after the Federal Assembly issued its recommendation. In order to pass, a popular initiative intending to modify the constitution needs to secure a “double majority”; the majority of the population and the majority of the Swiss cantons. Eventually, the proposal secured the required double majority with 50.34% of the population and 17 of 26 cantons favouring the initiative (for historic reasons some Cantons only have half a vote meaning that technically the Canton vote was 14.5 in favour and 8.5 against).

III. The next steps

Now, that the popular initiative has been successful, it enters the regular legislative process of the Swiss Confederation. The Federal Assembly has precedence in legislative matters; the Federal Council can only legislate if the Assembly does not do so within the three years allotted by the new constitutional provision. The Federal Council has instructed the Federal Department of Justice and Police (FDJP), supported by the Departments of Justice and Police, Foreign Affairs and Economic Affairs, Education and Research and the Federal Office for Migration, to draft an implementation plan by the end of June of this year. The Council aims to present a draft law to the Federal Assembly by the end of 2014. According to the preliminary plan, the Assembly intends to start debating the legislation implementing the Mass Immigration Initiative in the Spring Session of 2015 (2nd-20th March).

However, in line with Swiss political convention, it is to be expected that the result of the vote will be tabled for discussion in parliament much earlier to allow the parties to determine what the Swiss voters “really wanted”. A political consensus over this “Will of the People” is the basis for any subsequent implementation. The next parliamentary session starts Monday, 3March 2014. This is when the struggle for the dominant interpretation of the vote will begin.

It is unlikely that all arguments of the initiative’s supporters will need to be re-considered during the legislative process. Some of the arguments that the supporters advanced in their campaign did not eventually appear to be a concern for voters. For example, anxiety over population density (“Dichte-Stress”), high rents and overcrowded trains were linked to increased immigration, suggesting the existence of a causal link between one and the other. However, in the regions that suffer most from those issues – i.e. densely populated urban areas – the electorate overwhelmingly voted against the initiative. Switzerland’s largest cities – Zurich, Geneva, Basel, Berne and Lausanne – all rejected the initiative by comfortable margins: Between 61.3% and 72.3% voted against the proposal (according to preliminary numbers from the Federal Statistical Office). Thus, to take the concerns of the Swiss electorate seriously, all actors will need to take care to identify what exactly motivated the Swiss voters to vote as they did.    

While the implementation process is ongoing, most of the initiative’s provisions will not have an immediate impact on daily affairs. The exception is that no international treaties may be signed, which violate the initiative’s provisions (Art. I(4)). This means, for example, that Switzerland will not be able to accede to the Protocol extending the provisions of the Free Movement Agreement to Croatia, which has in turn, already caused the EU to shelf numerous bilateral projects with Switzerland.