Update: 06.10.2016

Institutional discrimination in the new Citizenship Act

On 17 June 2016, the Federal Council passed an ordinance to revise the citizenship act and put the new naturalisation act into force on 1 January 2018. The act was adopted by parliament on 20 June 2014.

The new ordinance on Swiss citizenship is more concrete and was heavily discussed during the consultation procedure. Subsequently, the Federal Council missed an opportunity to reduce social discrimination towards naturalisation applicants and to eliminate excessive restrictions of fundamental rights in the ordinance. It did, however, abstain from including an embarrassing declaration of loyalty.

The new naturalisation act provides some prime examples of institutional discrimination.

Starting point

Under what preconditions should foreigners receive Swiss citizenship? This issue has been a source of disagreement among authorities, politicians, and courts on a local, cantonal, and federal level for years.

Importance with regard to human rights

In Switzerland, citizenship has a great effect on human rights for a number of reasons. Firstly, political rights are directly connected to citizenship. Secondly, fundamental principles of procedure apply to naturalisation procedures. Thirdly, citizenship provides the only guaranteed protection from expulsion. Finally, the naturalisation criteria and its implementation must not result in an undue limitation of fundamental rights as guaranteed by the Federal Constitution.

High barriers

Switzerland applies the ius sanguinis, the right to citizenship based on parentage. Along with citizenship comes the right to vote. Foreigners living in Switzerland can obtain Swiss citizenship through naturalisation. This procedure is regulated on a national level by the Swiss Citizenship Act (SCA). But the various cantonal laws, as well as municipal regulations, also matter since naturalisation applications must be assessed by all political levels.

Up to now Switzerland has always had a naturalisation policy with high barriers, resulting in a quarter of the inhabitants of Switzerland being excluded from voting and elections. This is alarming especially with regard to Switzerland’s obligation to regularly hold free and fair elections (Art. 25 of the International Covenant on Civil and Political Rights, cf. our article on the topic). Furthermore, the manifold naturalisation processes in Switzerland may not live up to the procedural preconditions as defined by human rights.

Obligation to list reasons for rejection

In 2003 the Federal Supreme Court reprimanded municipalities for deciding on naturalisation requests at the ballot box. According to this verdict, municipalities must list the reasons for a rejection and treat every person in good faith (based on Art.9 of the Federal Constitution). As a result the authorities have been trying hard to standardise the criteria for a successful naturalisation over the past few years.

Ordinance on the revised citizenship act

The parliament’s revision of the SCA should be assessed in this context. The integration criteria necessary for naturalisation are defined in the SCA and were substantiated in the relevant ordinance (SCO) which was adopted by the Federal Council on 17 June 2016.

The integration criteria defined in the SCO are somewhat problematic and were discussed fiercely during the consultation procedure. But the Federal Council did not take into account the concerns and objections and went with the majority opinion of the canons and political parties. One exception is the obligation for those seeking naturalisation to sign a declaration of loyalty which was originally included in the ordinance. This was deleted without substitution.

Let us focus on some objectionable aspects of the SCO from a fundamental rights perspective. Fundamental rights of privacy and expression have been unduly restricted, however, the question remains whether or not the exclusion criteria for former offenders and welfare recipients infringes on the principle of non-discrimination (Art. 8, Para 2 of the Federal Constitution).

Inappropriate intrusion into privacy

One of the prerequisites for naturalisation listed in the SCA is familiarity with the “Swiss way of life.” The SCO explains that this familiarity includes firstly basic geographical, historical and political knowledge of Switzerland, as well as participation in social and cultural activities and contact with Swiss nationals. In this context, the explanatory notes mention knowledge of traditions and sights in Switzerland as well as membership in associations or participation in festivals and other special occasions.

Such criteria pose two kinds of problems with respect to fundamental rights. They are vaguely worded which can lead to arbitrary decisions – especially during communal meetings and in citizens’ committees. Furthermore, the stipulations to participate in festivals and associations, to exercise voluntary activities or to initiate close contact with Swiss citizens greatly interfere with the fundamental right to privacy (Art.13 of the Federal Constitution). These prerequisites for naturalisation contract the right to privacy when naturalisation applicants are put under pressure in this respect. And this is in contrast with Switzerland’s self-image of a liberal country under the rule of law.

Disproportional limitation of freedom of expression

In Art. 5 of the SCO, a more exact definition of the requirement “respect for the values as defined in the Federal Constitution” is provided. It includes the “rule of law”, “fundamental rights such as the equality between men and women, the right to life and to personal freedom, the freedom of belief and conscience as well as the right of free expression” and compulsory military service and schooling. Aside from there being a lot of room for controversial interpretation of these abstract values the following question remains: How can one assess whether or not a person respects these values?

The explanatory notes state that “commitments or actions of applicants that contradict these fundamental rights, e.g. lacking tolerance towards other groups and/or religions or the approval of forced marriages, indicate that a person is lacking sufficient integration. Such applicants should be excluded from naturalisation.” It seems that opinions (“commitments”) or certain behaviours of the applicants that do not conform to these values in some undefined manner but do not constitute a violation of the penal code can be sanctioned in the naturalisation procedures. It is enough to check on the attitude of a naturalisation applicant in order to determine such an “offense.”

This setting is highly paradoxical since the freedom of opinion as guaranteed in the Constitution also includes disagreeable opinions on the values stated therein. The ordinance now allows people to identify such disagreeable opinions and refuse naturalisation.

BUntil now it could be assumed that fundamental rights such as the freedom of expression are for everyone. In this case, however, non-conformist views on fundamental rights are used against applicants for naturalisation. Freedom of expression is undermined and sabotaged in the name of fundamental rights, which include the freedom of expression. This is nothing more than constitutional patriotism used for totalitarian control.

Discrimination because of the register of criminal convictions

According to Art. 4 Para 2 of the Ordinance on Swiss Citizenship, most previous convictions of a person applying for naturalisation are considered as exclusion criteria as long as these previous convictions are openly accessible to the State Secretariat for Migration in the register of criminal convictions VOSTRA.

This register has previously played a role during an application for naturalisation. But so far, it was only the extract of the register that was considered, the part that also has to be submitted when applying for a flat or a job. From now on, naturalisation will be impossible for as long as the migration authorities have access to the register of criminal convictions; significantly longer than if the decision is just based on the extract. This waiting period can be up to 10-20 years in the case of prison sentences. Future applicants for naturalisation will have to wait significantly longer after they have served their sentence before they can apply for naturalisation.

The fact that the register of criminal convictions is an obstacle in the naturalisation process is considered justified in the explanatory report “since naturalisation as a last step should set the highest demands to fulfil.” But according to a recent study by the University of Zurich, naturalisation helps and furthers long-term integration. Experts have found that, instead of perceiving naturalisation as a last step of integration, naturalisation is actually an essential prerequisite for successful integration.

This train of thought can also be applied to one of the main aims of law enforcement: the reintegration of offenders into society. Former delinquents will find it even more difficult to become naturalised although they may have served their sentence a long time ago. This is an unnecessary obstacle to the reintegration of the affected person. Furthermore, it is a form of institutional discrimination due to its social status according to Art. 8 Para.2 of the Federal Constitution. This article states explicitly that no person may be discriminated against because of their social position – including their criminal record.

Discrimination on financial grounds

The ordinance states that “Particiption in economic life” according to Art. 12 Para. 1d of the Swiss Citizenship Act (SCA) is not fulfilled “if the person applying for naturalisation has lived off social welfare during the three years preceding the application or if the person becomes dependent on social welfare during the naturalisation procedure.”

A person is considered integrated (as defined in the SCA) if they participate in economic life or get an education or owns enough assets. Thus foreign nationals that don’t have a job but own enough capital shall not be excluded a priori from naturalisation. According to the explanatory report, this “principle of economic self-preservation capacity” forms the basis for participation in economic life or the acquisition of education. As soon as somebody fulfils this principle he/she can be considered integrated.

Swiss persons dependent on Social welfare would not be considered integrated since they do not fulfil the principle of economic self-preservation. The legislator is therefore taking a further step to exclude and stigmatise persons living off social welfare. This criterion of participation in economic life discriminates against both persons applying for naturalisation in a real way and Swiss persons symbolically because of their social position (cf. Art.8 Para 2 of the Federal Constitution). As Matthias Bertschinger puts it: “Whoever is dependent on social welfare payments has no say in politics.”

This tendency to discrimination based on a person's financial situation is reinforced by Art. 4 Para. 1a and 1b of the Ordinance. According to the explanatory report, outstanding tax, rent, health insurance, fines and general accumulation of debt could impede naturalisation.

Transformation of guarantees into acts of mercy

The strict exclusion of welfare payments during the three years preceding naturalisation is a minimum standard that can be reinforced on a cantonal level, and has been in the revision of the canton of Bern Law on Social Welfare. This rigorous provision is moderated by the (theoretical) possibility to pay back the social welfare payments already obtained and by “taking into account the personal situation” in Art. 9 SCO, which allows authorities to overlook social welfare payment criteria in cases of disability, severe illness, dyslexia or illiteracy, in-work poverty, care responsibilities and youth unemployment.

This optional provision is ambivalent since it puts the authorities into a position to decide whether or not dependencies on social welfare are self-inflicted or not the person’s fault. Applying this exception provision turns naturalisation into an act of mercy. A prerequisite for this skew concept is the institutional discrimination of all applicants for naturalisation who are dependent on social welfare, although discrimination based on social position in society is forbidden according to Art. 8 Para. 2 of the Federal Constitution.

The explanatory report states that a potential act of mercy takes into account both “the ban on discrimination and the principle of proportionality.” This has become a popular pattern in law relating to foreigners. Where rigorous legislation violates the principles of the rule of law, they are reintegrated into the ordinances as makeshift hardship clauses. That is how fundamental legal guarantees are transformed into acts of mercy.

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