Hi all,


What do you make of the following situation?


Non-EU B permit. The issuing canton pretends on the telephone that it is linked: 'no geographic mobility and no employer mobility'.


A canton on the other side of the country says that nothing prevents the holder of this permit from taking a job in their canton. In other words, the agent at the alien office of the other canton enters the permit number in his system and sees absolutely no restriction.



Still according to the agent of the other canton, the only difficulty is changing cantons, which requires an application just like for everyone else. As we know, work permit and residence permit are two different things.


Is the issuing canton lying? How to obtain proof that what one or the other says is true? Is there a central authority to which a humble foreign might address himself?

No, they are not.

Tom

Yes they are different things.

The only system the other canton can look into is the federal ZEMIS which doesn't contain that information (restrictions on a B permit per Art. 33.2 AIG) at all. Those are stored in the cantonal database of the issuing canton. The other canton can't look into that.

Non-EU residence permits are a cantonal thing, federal authorities (SEM) are only involved in several cases where they must approve a cantonal decision and for printing the actual permit card.

I don't think the issuing canton is lying. You can ask them (the Migrationsamt) per mail and they'll reply to you on paper and I'm pretty sure they won't risk lying on physical paper.
I don't think the other canton is lying, too.

What I think is happening is the following:
First, moving cantons on a non-EU permit actually entails applying for a new permit in the new canton and canceling the permit in the previous canton after that.
If your new canton approves your application, it will get sent to SEM for a final federal approval as it's the first permit issued to you in the new canton. SEM will know that your previous permit was tied to the employer because they did approve this decision sent to them by the Migrationsamt of your current canton. So they can just refuse the federal approval and require the new canton to go through the full non-EU permit approval process as if you were a new arrival. It won't be the fault of the new canton.

You can write to SEM but I don't think that might be helpful. They will not be able to answer your question because they'd need to have a residence permit application from the new canton already on file. SEM also can't lift the restrictions on your existing permit because that's strictly a cantonal competence.
You can ask your existing canton through your employer to remove the restrictions, though you'd need both the employer and the Migrationsamt to be cooperative for that. I managed to successfully do so for my permit in 2017.

No, they are not.

Granted, permission to live here isn't the same as, and doesn't always confer, permission to work here, but it is physically the same document that gives one or both permissions.

It's not a case of the issuing canton "pretending"; unless you have an open B permit then you cannot move cantons without asking permission to do so from both the issuing canton and the one you want to move to.

No. There are no non-EU B permits allowing intercantonal mobility, not even 'open' ones, read the AIG/LEtr for details . A non-EU L/B/C permit holder must always ask permission of the new canton, and only a C permit holder has that as a legal right, others can only ask. There's no such legal thing as 'permission of the issuing canton', you apply in the new canton and deregister in the old one when you get approved. Maybe the SEM asks the old canton if they're okay with you moving as part of the federal approval, who knows? It's not codified in law.

On the other hand, EU permit holders have full intercantonal mobility, as their permits are governed by an international treaty (enforced by the confederation) rather than cantons with oversight from SEM.

EDIT: One exception where you need both cantons' approval is if you want to live in one canton and work in another one, because then your residence permit is issued by the canton where you live but the right to work is granted by the work canton. But OP's case seems to involve a change of employer, too.

Based on the information from canton Zurich https://ma.zh.ch/internet/sicherheit...B6rigen+IW.pdf
and
https://awa.zh.ch/internet/volkswirt...html#allgemein

Non-EU/EFTA nationals: Relocating to an other canton needs approval from the canton you move to.

Changing employer to an other canton: Needs approval from the canton you move to AND from the canton you move from.

You may also ask your employer. They signed a few documents to get the permit for the high-skilled individual which happens to be neither Swiss nor EU-national. They should know the restrictions on the permit.

Thanks for this explanation! Also helps me as well. In my case I’ve never asked for permission but for two years now they have renewed my permit (live in one canton and work in another; the employer to my knowledge has never notified the canton I am working in.

But back to the OP: which two cantons are you referring to? As it’s not codefied in law, perhaps some cantons are less strict in the implementation and interpretation.

I had somewhat similar situation in Zürich some years ago. My lawyer (specializing in immigration law) explained that there is no such thing in the law as "restricted B permit".

The law says (Art 38.2):
"Personen mit einer Aufenthaltsbewilligung, die zur selbständigen oder unselbständigen Erwerbstätigkeit zugelassen sind, können ihre Tätigkeit in der ganzen Schweiz ausüben. Sie können die Stelle ohne weitere Bewilligung wechseln."

I.e. a B permit issued for the purposes of employment is valid in the whole country and no further approvals are needed. Any restrictions that AWA or Migrationsamt puts on a B permit have to respect this.

What happened next is that the lawyer wrote a letter to the authorities (AWA), and the next day the permit was suddenly "opened".

Such restrictions on B permits are fantasies of the authorities and do not stand an appeal. They only exist because most foreigners don't know their rights and are not willing to argue their case.

Yes, they are.

You missed Art. 33 Abs. 2 FNIA https://www.admin.ch/opc/en/classifi...index.html#a33
which overrules the general clause of Art. 38 Abs. 2 FNIA https://www.admin.ch/opc/en/classifi...index.html#a38
At least this is current view of the SEM till a federal court says otherwise, as apparent from 4.5.1.2 in SEM Guideline (no English version available) https://www.sem.admin.ch/sem/de/home...erbereich.html

Note: the above only concerns Non-EU/EFTA people. EU/EFTA nationals have no restrictions and free movement in any regard.

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I have to put a disclaimer that I am not a lawyer However, when working with the lawyer on various problems that I had, I have realized that it does not work the way you describe below.

I.e. no such overrule happens unless the lawmakers explicitly qualify an article of the law by referencing another article of the law where additional conditions are listed (explicitly linking articles in the text). In case of AuG 38.2 no such qualification is there:
"Personen mit einer Aufenthaltsbewilligung, die zur selbständigen oder unselbständigen Erwerbstätigkeit zugelassen sind, können ihre Tätigkeit in der ganzen Schweiz ausüben. Sie können die Stelle ohne weitere Bewilligung wechseln."

Thus, any other restrictions put on the permit should then respect this general principle described in 38.2. Even more so any explanatory or internal instructions issued by SEM, AWA, etc. Also, please note that any English translation is just for information purposes, it does not have any legal meaning.

As for the court decision - to get such a case to a court (and even more so to the supreme court), one needs someone who would appeal a permit restriction (like I did) and the authority then is willing to take matters to the court. I have mentioned earlier that in my case after a complaint letter AWA immediately lifted their "restrictions" on the permit. They probably also have lawyers who read those laws and don't want to end in the court and lose

Thanks to all who provided answers beyond four words!

To some of the initial respondants...
- Surely we agree that the work permit and the residence permit are on the same card but the treatment of the two subjects can be wildly different when the foreigner is non-EU and non AELE.
- Direct dialogue with the employer concerning such restrictions is a delicate subject that would only function in certain cases. Especially when the objective is to leave the employer.

NichtsBesonders, thanks for your explanation. It makes sense intuitively.

klausenhauser, I'd prefer to leave the names of the specific cantons out of this. What is certain is that the canton that one wishes to exit, doesn't like the idea at all. It's not ZH.

awanderer, your experience is extremely interesting. Definitely something to keep in mind. The situation that I am discussing is such that the involvement of lawyers could sour things and would be a last resort.

Yes they are actually. There are permits which entitle you to work, but not take up legal residence in Switzerland. I call that a work permit, You work in Switzerland, but do not legally reside there. So not a residence permit at all. I know as I've had one.

alexyalmtl, it is certainly better to resolve things amicably, if feasible. In my case neither the company nor authorities could offer any satisfactory solution, but the lawyer has solved it fast and reasonably inexpensive.

Note, that this whole process (issuing of a permit) is really a bureaucratic procedure with a bureaucratic outcome (issuance of a certain permit type), so you can hardly sour any relationships there. In fact my lawyer simply sent a letter explaining why a certain action had to be taken and in this specific case authorities just agreed (the lawyer most likely has a reputation there already).

You will normally not find such explicit links within a Swiss law. Albeit the FNIA has an exceptional amount of cross references. The FNIA does not serve a as a good example in this regard. Accordingly one article can give you a privilege while an other might limit this privilege without explicetlz citing each other. Vice versa as well. The order of the articles within a section is not important, it is not like that the higher number articles overrules the lower ones. Nevertheless the lawmakers try to order them logically.

Unfortunately website of the canton Zurich court is down https://www.gerichte-zh.ch/entscheide.html
Otherwise I had look what could be found.

But the canton Zurich Migrations Amt also reinforces:
https://ma.zh.ch/internet/sicherheit...ten_IW_AIG.pdf

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Such fun! If you reside and work in Switzerland, then your work permit is your residency permit. If you reside but aren't allowed to work, then your residency permit isn't your work permit. If you're a cross-border worker, then your work permit isn't a residency permit. So yes, they're the same thing and no they're not. In the OP's case, they are.

L permit holders need authorisation to change jobs. C permit holders don't. Seems the jury is still out on B - but you do need to fulfil certain conditions to become self-employed, but to me Art 38 (and 37 concerning moving to another Kanton) does not prevent conditions being attached.

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Down with racism. Long live miscegenation!

Conclusion being that most Swiss permits are residence permits, some of which allow employment whilst others do not.

Separately there are also Swiss permits which are simply work permits and nothing more.