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Old 06.09.2020, 15:23
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Unemployment benefits denied - restricted B permit non - EU

Dear all,

I am wondering if any of you (non-EU nationals) have had a similar experience and, if so, how have you dealt therewith.

[I know there were similar threads on this forum, yet the end outcome and particular measures taken were not clearly reported. Also, being a lawyer myself, I do have quite some arguments in mind... Yet, I am searching for a feedback on what worked, how, etc.]

To make the story reasonably short, having spent a big number of years on the "formation / activité (100%)" B permit as a PhD student in Geneva, I have finally received a proper work B permit last March, in the same canton, on the basis of the contract of the indefinite duration with a Swiss NGO. It was not easy, my file was lost 3 times and the process has taken some 9 months from the application date... The permit is restricted to the employer (e.g. states that the change of an employer is subject to authorization). It was prolonged once. This July the NGO closed down for good, largely because of the COVID impact (this is stated in the certificate issued by the employer).

As advised in the termination letter, I have applied for chomage and have managed to find several small jobs as an intermediate gain (having consulted with the chomage advisor before signing up). One month and several days later, when my accessory projects were well on their ways, I have received a letter from the OCE saying that I am not eligible to be on chomage since my permit states that I can not change the employer freely. This - with retroactive effect. They cite in support the jurisprudence related to the absence of right of a PhD student assistant (so formation / activité permit, the main aim of stay - formation, temporary (and who signed an obligation to quit the country after the studies)) in justification. Which is clearly a different case.

Before applying for chomage I have read plenty of stories from people having received benefits with restricted permits all over Switzerland, the problem, if ever, being the renewal of the same. I do not think I am totally desperate in my searches, but managing finding a 100% job on the Swiss market in my area (international trade) now (we are indeed hit by the COVID in this domain) and having them finished a search on the local market is unrealistic in a month or two... While it is true that my permit sets an additional condition in securing the new employment, it does not seem to prohibit the same, only makes it somewhat harder.

Other than that, I feel a bit weird [and unfairly treated] being denied a right to benefit from the unemployment insurance at least during the remaining time of my B permit's validity after having paid it for more than 10 years in total... Maybe they should at least think of reimbursing it like the LPP?..

To conclude, I feel I need to clarify this point: I am not anyhow intending to "benefit" from the unemployment by doing nothing. For me it is rather a tool for securing a 100% employment than getting the benefits (I am over 50% in gain intermediate from the 1st month...). In our sector, one can not really stop performing to stay on the market, and also it is very typical to pre-hire a person on a part-time basis first to see it he / she fits before launching a sophisticated procedure.

I would appreciate it if you could share any relevant leads or experiences / success stories.

Many thanks in advance,

Leonila
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Old 06.09.2020, 17:54
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Re: Unemployment benefits denied - restricted B permit non - EU

if you were indeed 'tied' to the employer, and are Non-EU, then I cannot see how you can get another job, unless you got a new permit...



Essentially, once your job finishes, your permit ends and you need to head home or begin again in another country. Whatever work you have been doing in the interim, may not be legal.



As agreed with your PhD, you need to head home...is that possible right now for you ?



If you want to continue, you need to head out (to your home country, or to another country that will allow you to work) and then apply again for jobs in Switzerland if that is what you want to do.
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Old 06.09.2020, 18:30
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Re: Unemployment benefits denied - restricted B permit non - EU

This linked article concerns a non-EU citizen who completed his PhD at the University of Basel. Although he had paid into the unemployment insurance fund for five and one-half years, he was denied unemployment compensation because his permit "residence permit B, education with gainful employment" was restricted to a specific purpose and did not permit any other gainful employment:

https://www.20min.ch/story/er-verkla...d-188563983575
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Old 06.09.2020, 18:37
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This linked article concerns a non-EU citizen who completed his PhD at the University of Basel. Although he had paid into the unemployment insurance fund for five and one-half years, he was denied unemployment compensation because his permit "residence permit B, education with gainful employment" was restricted to a specific purpose and did not permit any other gainful employment:

https://www.20min.ch/story/er-verkla...d-188563983575
There is a difference. My permit is an employment permit, not study/ limited activity. With the study permit, one signs an undertaking to return home as a condition. Not with a restricted work permit (all of us non-EU have this type of permit for the first 3-4 years of employment).

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if you were indeed 'tied' to the employer, and are Non-EU, then I cannot see how you can get another job, unless you got a new permit...



Essentially, once your job finishes, your permit ends and you need to head home or begin again in another country. Whatever work you have been doing in the interim, may not be legal.

As agreed with your PhD, you need to head home...is that possible right now for you ?

If you want to continue, you need to head out (to your home country, or to another country that will allow you to work) and then apply again for jobs in Switzerland if that is what you want to do.
I see you are not necessarily in my shoes... Which is great.

However:

What about paying mandatory unemployment insurance since 10+ years for nothing?

What about having a contract of indefinite duration and being dismissed solely due to the impact of external circumstances (COVID)... [what are the aims of the unemployment insurance at the end, is protection from involuntary dismissal among them?]

Otherwise, please read carefully, my 2 PhDs are behind, this was a work-work, not anyhow related to the studies, not subject to the obligation to leave after its end.

What about the fact that interim gain was authorized by the unemployment office and encouraged, while the decision on withdrawal of benefits came more than a month later (with no sign whatsoever that any doubts with respect to my entitlement are investigated)...

What if I can not leave having a dependent at the end of the high school who has never lived in the country of her passport, does not master the language, etc (sorry for the lyrics, I know this is a totally different matter, but your categoric answer inspired me).

Thanks

Last edited by roegner; 06.09.2020 at 20:18. Reason: Merging consecutive posts
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Old 06.09.2020, 20:13
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Re: Unemployment benefits denied - restricted B permit non - EU

I did not make the rules, and I can't help you around them.
But I do know you can appeal.



This depends very much on the type of B permit that was issued - and there are quite a few different scenarios and also some rule changes that may be impacting the decision. Was the advice from the Canton Migrationsamt or the local authority, or the work authority ?



I would contact the work authority to check the status of your permit. What sort of permit was it and under what conditions was it issued. You were certainly informed that it was 'tied' so in that case, you are really creating difficulties if you are now working illegally for another employer with no permission - and that employer will be really pissed off when they find out... as they could be fined some serious money and also be limited from employing foreigners...



Yes, it's really tough at the moment. You might now fall into the 'sans papiers' category... I would talk to a migration support service urgently....they may know if you can appeal, and on what basis... I am sure they can also call on your behalf to check your permit status and see what permit was really issued - someone may have stuffed up...



http://www.sans-papiers.ch/index.php?id=106
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Old 06.09.2020, 20:25
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Re: Unemployment benefits denied - restricted B permit non - EU

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There is a difference. My permit is an employment permit, not study/ limited activity. With the study permit, one signs an undertaking to return home as a condition. Not with a restricted work permit (all of us non-EU have this type of permit for the first 3-4 years of employment).

Actually, there are several types of non-EU B permits. 'all of us' don't have the same ones...
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Old 06.09.2020, 21:17
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I will reply to all the posts above together.

I am a lawyer. I have answers to all the questions you pose above. To me they are they are points I research on and carefully analyze long before acting, therefore no way for "working illegally" or fulling employers. Maybe you need to be a bit more optimistic about others.

Going into sans papers is also not a solution on my professional level.

As I was trying to make it clear in my post, after my analysis of the situation, I am seeking to hear about practical experiences from the others who faced it. I know many did and there are success cases and failure cases. I what to see what made the difference. For instance, the Indian fellow mentioned by @Mullhollander above was on a right track overall, but had a study permit and was not a lawyer / not used any in his legal battles. These two aspects could make a difference already.

Most (I would not say all, since, as a lawyer I tend not to favor bold statements) non-EU B work permits are initially issued as conditional, which means linked to the employer, who sponsored them. There are many threads even in this forum explaining how they look, etc. Surely I knew mine is one of them. They say "change of employer subject to approval" in the relevant language. They normally get delinked, around year 4-5. For the work permits, these are two types. There is also studies, studies with activity, etc. Sure there are many types, but this is less relevant for the purposes of my prospective challenge to the decision at stake.

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I did not make the rules, I can't help you around them.
Also on this... A bit off topic. I might be sensitive, but it kind of sounds bad .

All my professional life I am working with rules. There are rules, there are facts and there is interpretation. There are no rules exactly capturing many of our life instances, just because they were developed taking into consideration somewhat different cases or concerns. This is where you need to work with these provisions - their text, context, object and purpose, other relevant circumstance, to see how, to what extent, if at all they are applicable. I do not think this is "going around". More like searching for truth and justice.

Last edited by 3Wishes; 07.09.2020 at 20:16. Reason: fixed quote
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Old 06.09.2020, 21:55
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Re: Unemployment benefits denied - restricted B permit non - EU

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I will reply to all the posts above together.

I am a lawyer. I have answers to all the questions you pose above. To me they are they are points I research on and carefully analyze long before acting, therefore no way for "working illegally" or fulling employers. Maybe you need to be a bit more optimistic about others.

Going into sans papers is also not a solution on my professional level.

As I was trying to make it clear in my post, after my analysis of the situation, I am seeking to hear about practical experiences from the others who faced it. I know many did and there are success cases and failure cases. I what to see what made the difference. For instance, the Indian fellow mentioned by @Mullhollander above was on a right track overall, but had a study permit and was not a lawyer / not used any in his legal battles. These two aspects could make a difference already.

Most (I would not say all, since, as a lawyer I tend not to favor bold statements) non-EU B work permits are initially issued as conditional, which means linked to the employer, who sponsored them. There are many threads even in this forum explaining how they look, etc. Surely I knew mine is one of them. They say "change of employer subject to approval" in the relevant language. They normally get delinked, around year 4-5. For the work permits, these are two types. There is also studies, studies with activity, etc. Sure there are many types, but this is less relevant for the purposes of my prospective challenge to the decision at stake.

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I did not make the rules, I can't help you around them.
Also on this... A bit off topic. I might be sensitive, but it kind of sounds bad .

All my professional life I am working with rules. There are rules, there are facts and there is interpretation. There are no rules exactly capturing many of our life instances, just because they were developed taking into consideration somewhat different cases or concerns. This is where you need to work with these provisions - their text, context, object and purpose, other relevant circumstance, to see how, to what extent, if at all they are applicable. I do not think this is "going around". More like searching for truth and justice.
Well, if you are a lawyer and know Swiss law, then you have your answer? You are non EU and those rules apply

Last edited by 3Wishes; 07.09.2020 at 20:16. Reason: fixed quote within quote
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Old 06.09.2020, 22:27
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Re: Unemployment benefits denied - restricted B permit non - EU

I'm no lawyer, but some things in Switzerland for non-EU's need you to have been employed for 2 years not counting anything like PhD's before you're entitled to them. It may be that unemployment works this way too. If you've only been employed since March last year you may not be entitled to unemployment.

Also your permit is no longer valid despite having time left on it. Once your employment ended so did the permit's validity. If you come from a non-EU country that doesn't need a tourist visa to be here then you can stay for up to 3 months after your employment ended, but if not then you should have been looking to pack up and leave the country as soon as you could.
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Old 06.09.2020, 22:58
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Re: Unemployment benefits denied - restricted B permit non - EU

It helps to read the posts to which you are reacting carefully. Thanks.
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Old 06.09.2020, 23:31
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Re: Unemployment benefits denied - restricted B permit non - EU

A job seeker must be "placeable" (vermittelbar) to be eligible for unemployment compensation. A job seeker with a "tied " permit is not placeable and therefore would not be eligible for unemployment compensation.


Also, it appears that the OP needs to better understand the difference between RAV and Caisse (ALK). RAV assists with the job search and Caisse is responsible for unemployment compensation payments, including determining eligibility.
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Old 07.09.2020, 14:09
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Re: Unemployment benefits denied - restricted B permit non - EU

I haven't read too much into this entire thread but as a anecdote - my non-EU friend who was on a PhD in Vaud received unemployment benefits after his PhD (no years worked on a 'work-work' B). He said if you work 2+ years you should be able to get some chomage.
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Old 07.09.2020, 14:23
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Must be quite tough going through what is probably a very stressful experience with the unemployment people. Hang in there!

It’s seems to me very unfair indeed that you are not able to receive any support mainly due to having your B- Permit tied to a specific employer and specially having paid the insurance premiums for the last 10-11 years. The last year of which as part of your contract with the NGO.

A compulsory federal insurance that takes premiums and 100% doesn't payout due to immigration conditions seems very odd at best.

To the OP: for the right people to help you I would kindly ask you to provide the following info:

- What is the date of issue if your B-Permit since you started work with the NGO?
- What exactly is written in the part which ties it to the employer?
- When were your first and last working dates with the NGO?
- Can you quote the paragraph or law reference under which the unemployment people pulled your support?
- Do you have the right to appeal the decision and until when?

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A job seeker must be "placeable" (vermittelbar) to be eligible for unemployment compensation. A job seeker with a "tied " permit is not placeable and therefore would not be eligible for unemployment compensation.
This seems very logical.

Could you point to any legal text or additional info to support this?

There must be a list somewhere as to what would make someone “un-placeable” and potentially action that the OP could take to turn that “status” around.

Last edited by roegner; 07.09.2020 at 16:01. Reason: Merging consecutive posts
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Old 07.09.2020, 18:39
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Re: Unemployment benefits denied - restricted B permit non - EU

For general placeability requirements, please see this link. Para. B230 - B233 specifically cover foreigners right-to-work placeability requirements (German):

https://www.koordination.ch/fileadmi...b/ale_b219.pdf
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Old 07.09.2020, 21:28
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Re: Unemployment benefits denied - restricted B permit non - EU

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For general placeability requirements, please see this link. Para. B230 - B233 specifically cover foreigners right-to-work placeability requirements (German):

https://www.koordination.ch/fileadmi...b/ale_b219.pdf
Thanks for that! Very useful.

Hopefully someone can chip in, my German is not good enough to decipher the legalese, in any case it would most likely require an employment lawyer’s input.

What I could gather is that the entitlement depends on the likelihood of the OP being able to secure a work permit as a non-EU citizen once / if she finds a job. That is a matter for the immigration office in the locality where she lives to opine on.

So it does seem, unfortunately, that as the OP’s current work permit is tied to a specific employer and that there is no automatic right to be given a new work permit if the OP finds another job, the competent authorities here no choice but to reject the claim as they cannot support financially and finding a new job with no prospect of the OP being able to take the job even if she manages to secure one.

Again only a lawyer with experience in this area or someone who has gone through the same situation could really opine here. The rest is rather just guess work.
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Old 07.09.2020, 22:28
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Re: Unemployment benefits denied - restricted B permit non - EU

I thanks everyone who was constructive above and was trying to answer my question.

I think my post does share quite enough of personal information already to add to it and, once again, groan or not, my question is very precise, I am ONLY interested in the challenges of the similar decisions that have taken place. Not in the legal provisions, etc (which, @roegner, I indeed know well and not inquire about), and not in how I should pack my stuff or in private judgments on validity of my permit, @Medea Fleecestealer).

For those of you excited about some of the legal aspects of placeability (LACI 15) (btw, I do not see where I mix ORP and the caisse, @Mullhollander? lack of placeability leads to denial of chomage benefits, basically this is the necessary link...), indeed, the authorities seem to consider that the restricted B permit makes its holder non-placeable, since new full examination process and new authorization is required to change the employer.

However, the case law they rely on (ATF 8C_479/2011, see here https://www.bger.ch/ext/eurospider/l...ment&zoom=YES& ), as well as ATF 8C_581/2018 (https://www.bger.ch/ext/eurospider/l...2018&print=yes) - the case mentioned by @Mullhollander above, and 8C_654/2019 (https://www.publications-droit.ch/fi...c-654-2019.pdf), among others, deal with B STUDY (not WORK) permits of doctoral assistants, under which the work was authorized for limited determinate time and in addition to studies (some % of time only). This, in my view, is a different case, since such permits are not subject to job market access procedures initially and, as they are, could not induce much expectations with respect to the future participation in the job market, among other things...

Other than that, it appears from the above decisions that the placeability has to be assessed on a case by case basis and that the application by the new employer submitted within the opposition period would be taken into consideration.

Very unfortunately, Switzerland has not ratified the 1st Protocol to the ECHR, since Art. 1 of the same is often used to bring the states to order in the similar cases, like here https://hudoc.echr.coe.int/eng#{"fulltext":["\"CASE%20OF%20GAYGUSUZ%20v.%20AUSTRIA\""],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-58060"]}. I am not sure to what extent this provision could still be relied on under "object and purpose" of the Protocol (since Switzerland is a signatory).

Many interesting details about the process of this all could also be found in the Bulletin LACI IC (Indemnité de chômage) (valable dès 1.8.2020) (PDF, 3 MB, 04.08.2020), there is also a German version, here https://www.arbeit.swiss/secoalv/fr/...ig-praxis.html

Finally, I would be glad to share my opposition letter now in making/ ideas therefrom, especially if they would work, with those of you who might want to see them, in future, once I'll have it drafted. I will let you know here. I still have more than 20 days to go.

Have a good evening and let's just be kind, whatever the passports are.
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Old 07.09.2020, 22:31
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Re: Unemployment benefits denied - restricted B permit non - EU

What can I say. Get a lawyer (a serious one ), if you are really serious about your staying in CH.
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Old 19.01.2021, 01:23
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Re: Unemployment benefits denied - restricted B permit non - EU

Hi Leolina
Maybe you can help me please?
Maybe we can help each other?
I was denied Unemployment Benefits and they took over 2 years to tell me!
I had worked more than 3 years and 16months of which was directly before claiming benefits.
The Swiss authorities are biased. Utter shite!
Thanks if you can assist. I have one last chance to appeal apparently.
regards
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