Simplified naturalisation of third-generation immigrants – unnecessary, bureaucratic and centralist

Simplified naturalisation of third-generation immigrants – unnecessary, bureaucratic and centralist

by Dr iur Marianne Wüthrich

The question of a revision of the Swiss Citizenship Act has been hotly debated in recent years – as even earlier – in the National Council and Council of States and after many differences, on 20 June 2014, they agreed on the totally revised Citizenship Act that only will enter into force as from 1 January 2018. No referendum has been taken (see box for the most important changes).
    At the same time the Parliament treated a Parliamentary Initiative of 2008 by the SP group with the emotional title “Switzerland must recognize its children”. It calls for facilitated naturalisation for the third generation of foreigners. After repeated postponement and various differences, the two Councils agreed to the provision on 30 September 2016. Because of the fundamental change of law, a revision of the Federal Constitution and thus a mandatory referendum is necessary. The proposal on which we will vote on 12 February is as follows:

“The Federal Constitution is amended as follows:
Article 38 (3)
3 it [the Federation] facilitates the naturalisation process of:
a. Persons of the third generation of foreigners.
b. Stateless children.”*
[* The facilitated naturalisation process applies to stateless children already today.]

Sounds reasonable, not? Who should mind that young people born in Switzerland and whose families have been living here for a long time receive the Swiss citizenship? But who examines closely the legal and political backgrounds reaches a different conclusion.

Swiss citizenship is closely linked with direct democracy, especially in the community

To become a Swiss citizen, it is not enough – different than in many other countries – to be born here or to have lived here a long time.
For the Swiss passport is not only a piece of paper that secures the holder the right of residence in Switzerland, the Swiss citizenship rather gives us an incredible amount of political participation at federal, cantonal and municipal level. We cannot only participate in elections as the citizens of other countries, but we help shape the Swiss legal order in numerous referenda, as well as by initiative and referendum right on all three levels of the State. That is why one can say legitimately: Being Swiss citizen is very special and we need to take care of it.
Those becoming Swiss citizens, who have lived at the place for a longer period, receive both the cantonal and the community citizenship. A person becomes Swiss citizen first in the community where he or she put down the first roots. There he or she applies for naturalisation and there the new citizen will be able to shape most directly the policy, in the Municipal Assembly and volunteer activities. The municipality must also give support if the naturalised person and his family may ever need social assistance or other support. Therefore, the Swiss population in the village want to have a say about the issuing of the citizenship. Of course, it is necessary that the future citizen can speak, read and write to some extent one of the official Swiss languages German, French or Italian in order to form an opinion the referendum texts at federal, cantonal or municipal level.
In order to prevent misunderstandings: nobody has to be perfect to get the citizenship, but just “integrated” (see box). As a vocational school teacher from time to time a municipality secretary or a member of the Citizenship Commission inquired me, if one of my students wanted to be naturalised. I replied: “Very decent, eager to learn, and cooperative”, and then “only the Swiss German/German writing is lacking a little.” – “As long as the commitment and behaviour are okay, we will naturalise him, he will learn German by and by” may the answer be. Just real Swiss.

Ordinary and facilitated naturalisation: federalism or centralism

On 12 Februar, we vote whether members of the third generation are supposed to be naturalised easier, or whether they are amendable to the ordinary naturalisation procedure as yet.
The ordinary naturalisation procedure is based on the federalist state structure of Switzerland. It starts with the application for naturalisation in the residential community/the residential canton. Cantonal law regulates the procedure in the canton and the municipality (Art. 15 Swiss Citizenship Act (SCA)). Not until the responsible authority (usually the Municipal Assembly or the Naturalisation Board) agrees to the request and the canton does not state reasons against it, is it conveyed to the State Secretariat for Migration (SEM), which grants naturalisation in case of compliance to the legal requirements (Art. 13 SCA). As yet, ordinary naturalisations are the general rule.
The facilitated naturalisation process is conceived to be centralistic: the Federal Council sets out the procedure; the State Secretariat for Migration decides. Since the people applying for naturalisation are hardly personally known to the SEM, “it consults the canton” (art. 25 SCA). But the canton has no say, and the municipality is not even mentioned.
Since the facilitated naturalisation process overrides the federal scheme usually applied in Switzerland, it applies only in special cases: for foreigners who are married to a Swiss (because their integration thanks to the tight companionship with the spouse is usually easier and to support the unity of citizenship in the family), as well as for stateless children being minor. A shorter length of stay is requested for these people, but they must meet the criteria for integration according to Article 12, too.
Newly, simplified naturalisation for “people of the third generation of foreigners” is supposed to be possible now. However, there are some weighty objections.

First and most important objection: Facilitated naturalisation for the “third generation of foreigners” is unnecessary

The young foreigners who have been living in Switzerland by birth and go to school here do not need these new rules. Because for them the years between an age of the completed 8th and the 18th year of life are counted already twice; if they live here for at least six years, they are allowed to apply for their naturalisation in their residential community (Art. 9 para 2 SCA; see box). Out of my numerous vocational students of foreign origin, I have taught in 30 years (in many classes, they were in the majority), virtually all, who wanted, were naturalised already during the apprenticeship at an age of 16 to 20 years. Some jointly with their family, but many on their own. This is one of the many benefits of dual apprenticeship: Those who take an apprenticeship and proved themselves there and in the vocational school, are virtually without exception “successfully integrated” (art. 11 a. SCA). If someone becomes criminal for instance, he usually loses his position as apprentice – then he does not meet the criteria of integration. It’s as simple as that.

Second objection: the proposed scheme is a “legislative bodge”1

With her parliamentary initiative National Councillor Ada Marra (SP, VD) and her co-signers are in reality up to something completely different to what resulted in the Parliament now: namely to newly introduce the “jus soli” (a person born on the territory of a state, receives the citizenship automatically), although this has been clearly rejected in a vote by the people and the cantons in 2004. Since the beginning of the consultations, the majority in the National Parliament and in the Council of States rejected such automatism. But instead of dumping the whole submittal, the parliament tried unconvincingly to ensure, that an applicant born in Switzerland really comes from a family who has lived here over two generations. According to the future Article 24 a SCA2 the person has to “substantiate”, that at least one grandparent had a right of residence in Switzerland, at least one parent “acquired a residence permit”, “is at least in Switzerland for ten years”, and “attended the compulsory school in Switzerland for at least 5 years” (cf. explanatory voting pamphlet, page 6/7).
Have fun with genealogy! I would rather call that a “bureaucratic monster” than “facilitated naturalisation”. Apart from the fact that actually children are assigned to the “third generation”, whose parents (or at least one parent) were born also in Switzerland, have lived here (and not only ten years) and went to school here (not only five years). That the naturalisation candidate is only requested “to have attended the compulsory school in Switzerland for at least five years”, is particularly questionable: either he belongs to the third generation of foreigners – then he was born here and grew up and did his schooling here – or he doesn’t belong to it.
The only ones who are happy about this construct, are probably sitting in the State Secretariat for Migration: there the staff-bubble had to be extended… The young foreigners, who are born here and grew up here, are certainly better served by today’s regime of double counting teenage years.

Third objection: Strengthen federalism rather than weaken it!

As in many other areas, also here the federalism ensures much better tuned regulations, supported by the citizens. Because the facilitated naturalisation for foreigners born in Switzerland, exists already in 16 cantons in various setups: “These simplifications concern renunciation of language and state structure tests, the reduction of the naturalisation fees, on shorter periods of residence or generally on simplified procedures.” (Member of Council of States Stefan Engler, CVP Graubünden). The minority, represented in the Council of States by Engler therefore wanted to support “simplified naturalisation” by the cantons instead of a “facilitated naturalisation” by the federation: “It is smarter to stay with the ordinary procedure and to allow the cantons, to determine the privilege of naturalisation itself, or alternatively to outline a framework in the Swiss Citizenship Act the cantons have to abide by.” In such a scheme the competences remained with the Cantons and the communities.
Short and sweet: Nothing is there in favour of the “facilitated naturalisation of persons of the third generation of foreigners” in the form which will be submitted on 12 February 2017 to the voting of people and cantons. The young foreigners as well as the federalism would be better suited with the rules applicable in Swiss Citizenship Act, which has been totally revised also only just two and a half years ago.     •

1    Member of Council of States Stefan Engler (CVP Graubünden) on 3.6.2016 in the State Council of States
2    The change in the law is published in the case of the adoption of facilitated naturalisation after 12 February in the Federal Gazette and is subject to the referendum.

The most important changes in the totally revised Civil Rights Law of 2014

–    Reduction of the minimum duration of stay as a prerequisite for the ordinary naturalisation from twelve to ten years Article 9 SCA). (Federal Councillor Sommaruga and the majority of the Council of States wanted to minimize it even at eight years, but failed due to the persistent resistance of the National Council).
–    Years between the 8th and 18th birthday count twice (much as in the past; Article 9 par. 2 SCA.)
–    Exact listing of the integration criteria which the applicant must fulfil:

Article 11 Material prerequisites: The granting of naturalisation permit of the Federal Government requires that the applicant:

a.    is successfully integrated;
b.    is familiar with the Swiss life conditions; and
c.    represents no threat to the internal or external security of Switzerland.

Article 12 integration criteria

1    A successful integration is evident in particular:
a.    in the observance of the public safety and order;
b.    in the respect for the values of the Federal Constitution;
c.    in the ability to communicate in everyday life by speaking and writing in one of the national languages;
d.    in participation in the economy or to the acquisition of education; and
e.    in promoting and supporting the integration of the wife or husband, the registered partner or minor children, about which the parental responsibility is exercised.
2    The situation of persons who cannot fulfil or only under difficult conditions the integration criteria of paragraph 1 letters c and d due of a disability or illness or other weighty personal circumstances, is appropriately taken into account.
3    The cantons may provide more integration criteria.
–    Prerequisite of the integration criteria also apply in case of the facilitated naturalisation; it so far mainly applies to foreigners who are married to a Swiss citizen (Art. 21 SCA).

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