by Raphael Capaul
During the tragic night of February 24, 2022, Putin began his invasion of Ukraine. Shortly thereafter, the fighting spread across the country, accompanied by reports of suffering and death. Nearly four million people have already escaped the country, with many more Ukrainians expected to flee. In the past weeks, Europe has been preparing for an influx of migrants and preaching support and solidarity.
People from Ukraine are allowed to enter the Schengen Area without a visa – that is, also Switzerland – and have a right of residence for 90 days.
But what are the options after these three months?
On March 2, 2022, the European Commission proposed to activate the EU Temporary Protection Directive (TPD). The principle is to provide temporary protection unbureaucratically and quickly. Asylum applications are not examined individually, but certain groups of people – in this case Ukrainians – are granted protection collectively. Eventually, on March 3, 2022, the European Home Affairs Ministers approved the application of TPD.
Switzerland applies Status S for the first time
As is often the case, the question arises of how Switzerland, as a non-EU country, will approach the current crisis.
On February 28, 2022, the Federal Commission on Migration (FCM; an extra-parliamentary commission) recommended to the Federal Council (the government) to apply Status S for people from Ukraine. Apart from some details, it is the equivalent of the EU’s TPD. In fact, both status were introduced after the war in former Yugoslavia, have never been applied before, and the right of residence is limited to one year but may be extended.
Political debates and opinions on Status S were not long in coming. For example, the Swiss Refugee Council (SRC) is in favor of its application, provided it is adapted to the current situation. Among other things, family reunification should be broadly interpreted. The right-wing Swiss People’s Party (SPP) does not want to apply Status S but is in favor of immediate assistance in Ukraine’s neighboring countries. The Social Democratic Party (SP) pleaded for the adoption of the EU’s TPD, because the party sees disadvantages of Status S in comparison to TPD, e.g., people are only allowed to work after three months of residence. Federal Council and Minister of Justice Karin Keller-Sutter countered that the level of protection of the two temporary protection regimes is very similar and that one has a certain flexibility with the application of Status S.
At a meeting with the European Home Affairs Ministers on March 3, 2022, Keller-Sutter announced that she intended to propose the application of Status S to the Federal Council. One day later, on March 4, 2022, the Federal Council welcomed the idea. This was followed by a hearing of the cantons, the humanitarian organizations, and the UN Refugee Agency UNCHR on the proposal, which was met with strong approval. Ultimately, on March 11, 2022, the Federal Council announced its historical decision: Status S will be applied for the first time for people from Ukraine seeking protection.
Recent legislative project on Status S in parliament
It comes with little surprise that Status S is currently attracting the attention of the Swiss political debate. It is a situation of war in Europe, requiring governments to act quickly and flexibly.
However, many issues concern political debates in the long term, including Status S. In June 2018, the Political Institutions Committee (PIC; a parliamentary specialist committee) mandated its secretariat, in cooperation with the administration, to prepare a draft law for a punctual revision of the Asylum Act regarding Status S, based on a parliamentary initiative (see below). The law was to be amended so as to regulate family reunification in a more restrictive way.
The consultation, which took place at the beginning of 2019, disclosed that the draft law was being met by a divided and polarized opinion. A back-and-forth between the Council of States (the upper house of Swiss parliament) and the National Council (the lower house of Swiss parliament) ensued between June 2020 and March 2021. The Council of States voted twice in favor of the draft law and the National Council twice against it, meaning that the legislative project ended up failing.
Several years of decision-making process from the beginning of the preparation of a draft law until the end of the parliamentary debate. This is known about Swiss politics.
Decision-making processes even during initiation of legislative project
But how did it come about that the PIC issued a mandate to prepare a draft law? Such a mandate hardly originates in a vacuum: The draft law on Status S recently discussed in parliament has its history.
According to the Asylum Act and the Geneva Refugee Convention, a refugee is anyone who is personally persecuted, e.g., because of religion or nationality. Following this definition, someone who is fleeing from a hail of bombs is not a refugee. Therefore, Switzerland usually grants the status of provisional admission (Status F) to a person who does not qualify for permanent admission and is supposed to leave Switzerland but cannot do so, e.g., because of war. There is widespread dissatisfaction in the Swiss political debate around Status F because most of those admitted “provisionally” de facto stay in Switzerland. Regarding Status S, many have questioned whether this regulation should be abolished or adapted, since it has not been applied (until very recently).
In March 2016, Philippe Müller (the Liberals), former member of the Council of States, submitted a parliamentary initiative aiming to tighten family reunification for Status S. He argued that extensive family reunification was an obstacle for the application of Status S and wanted to tackle this status to address the problems associated with Status F. In addition, in autumn 2016, the Federal Council published a long-awaited report in response to several postulates, in which the creation of a new status and the abolition of Status S is proposed. This report resulted in a motion of the PIC of the National Council (PIC-N) in April 2017, which called for a new status according to the report, as well as a motion of the PIC of the Council of States (PIC-S) in January 2018, which was a response to the motion of the PIC-N and only called for a punctual adjustment of Status F.
In this complex situation, political decision-makers had to negotiate and decide what needed to be regulated, how, and where, even before any legislative mandates were issued by the Federal Council or the PIC. The interplay between government and parliament – widely recognized as typical for legislation – even began with the initiation of the legislative process.
Even though the first application of Status S in the wake of the war in Ukraine came surprisingly quickly, the status is the subject of Swiss political debates in the long term. For one, years of decision-making on a legislative project have just taken place. For another, it would come to no surprise if the first application of Status S raises new questions and debates, e.g., integration measures.
A Global Perspective 