Secondments for brief deployments in Switzerland –  challenges and solutions in the event that the 90-day threshold is exceeded

Under the simplified notification procedure, employees can be seconded to Switzerland for up to 90 actual days of work per year without any requirement for costly authorisation. Registration occurs centrally according to the online notification procedure of the State Secretariat for Migration (SEM) and is harmonised at national level. The key point is that the 90-day limit applies per company, and it is irrelevant how many employees are seconded at the same time. For example, if eight German employees are seconded to Switzerland for a full week of work in order to put a production machine into operation, only five days will be used up for the purposes of the notification procedure. 

The principles applicable to the notification procedure, which were explained in detail in the OBT specialist article from January 2020 (Short-term gainful activity in Switzerland – the pitfalls of the reporting obligation) are still applicable and have only been amended in a few isolated respects. In order to clarify what happens in practice in specific scenarios, the instructions and commentary on the Ordinance on the Free Movement of Persons [Verordnung über den freien Personenverkehr, VFP] (VFP Instructions) and the related annexes should be consulted. 

Rapid secondment thanks to the emergency rules 

The distinction between reportable and non-reportable activities (Annex 5 to the VFP Instructions) provides an important basis for the reporting system. The emergency regulation (Article 3.3.5 of the VFP Instructions) laid down in Article 6(3) of the Swiss Act on Seconded Workers [Endsendegesetz, EntsG], which provides that work may start before the ordinary eight-day advance notification period under specific exceptional circumstances, is often applied in practice. In such cases it is permitted to second workers rapidly in the event of unforeseen events, such as in order to carry out repairs. 

The instructions on the retrospective alteration of notifications (Article 3.3.7 of the VFP Instructions) enables valuable days to be saved within the notification procedure. This is particularly important if there is a risk that the available days for the notification procedure may be exceeded over the long term, and individual employment permits prove to be necessary. 

Any changes to existing notifications must be submitted to the competent cantonal authority without undue delay, at the latest before the change takes effect. Any previously reported days of deployment that are not required are credited in full, provided that the cancellation message was received in accordance with applicable requirements before the work was completed. If any additional employees are required in order to perform a task for which a report has previously been filed, this does not trigger a new eight-day advance notification period (in an analogous manner to an extension of a deployment). 

Depending upon the starting position, it is important to be familiar with the existing instructions and ordinances applicable to the notification procedure in order to avoid, if possible, the costly ordinary approval procedure, or only to have to follow it in isolated cases.  

120-day permits: less stringent requirements than those applicable to a short-term residence permit 

If the maximum possible number of 90 days for the notification procedure has been used up, an individual employment permit for each person and for each canton is required for any further activity. In such cases, 120-day permits are often the most appropriate solution. If one of these is granted, the employees seconded (Article 19 of the Swiss Ordinance on Admission, Stay and Gainful Activity [Verordnung über Zulassung, Aufenthalt und Erwerstätigkeit, VZAE]) do not need to register after entering Switzerland and also do not need to obtain a foreign national’s residence permit. In addition, 120-day permits do not count towards the maximum limits for short-term residence permits. 

Foreign nationals subject to a requirement of a permit who perform gainful activity in Switzerland for up to a maximum of four months during any twelve-month period (according to Article 12(1) VZAE) receive an entry permit rather than a foreign national’s residence permit (Article 71(2) VZAE). This also regulates the period of residence in Switzerland and is issued prior to entry. The same also applies if the activity is only carried out on a daily basis, provided that the total period of four months during any twelve-month period after initial entry is not exceeded (Article 12(1) VZAE). Formally speaking, the 120-day permit is a type L short-term residence permit, although is subject to less stringent requirements due to its limited duration. 

120-day permit is regulated at cantonal level 

The decision as to whether to grant a 120-day permit is a matter for the cantons. As such, a separate application must be filed in each canton concerned, even if it involves the same employee. In addition, one individual application has to be filed for each person, and not by contrast for the seconding company or for the project as a whole. This adds up to a significantly higher administrative cost compared to the simplified notification procedure. 

The cantons can approve existing permits granted by other cantons. In order to obtain the permit in good time, applications should be filed with the office as a rule at least 20 days before the start of deployment. Some cantons also require that the 90 days under the notification procedure must have been completely exhausted before they grant a 120-day permit. Any days already consumed under the notification procedure are deducted from the subsequent four-month period available. 

Cantonal rules raise challenges in practice 

In many cases, it is necessary to enclose numerous documents concerning the seconded employees along with applications, in a similar manner to the procedure applicable to the labour market controls that are applied occasionally under the notification procedure. This enables the labour and migration offices to review whether applicable Swiss employment and salary conditions can be complied with for the duration of secondment to Switzerland. There is not by any means any guarantee that a permit will be granted. 

In practice, the applicable requirements and documents needed can differ significantly from canton to canton. It is therefore indispensable that the specific requirements are checked in advance with the cantonal migration offices, which provide the relevant forms and guidelines on their websites. Some cantons operate online portals through which applications can be filed directly. In order to ensure that all permits are obtained in good time and the requirements are met, it is essential for companies to start planning at an early stage. 

Conclusion 

The breach of the 90-day threshold for the secondment of employees to Switzerland results in the application of significant organisational and legal requirements. Therefore, the available days under the notification procedure should be used efficiently. Thorough preparation and cooperation with experienced partners can help to overcome possible hurdles and avoid delays. Companies should be aware of differences between the cantons and ensure that they comply with the relevant deadlines.