UK-Switzerland temporary services mobility agreement: explanatory memorandum
Updated 21 November 2022
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This publication is available at https://www.gov.uk/government/publications/temporary-agreement-between-the-swiss-confederation-switzerland-and-the-uk-on-services-mobility/uk-switzerland-temporary-services-mobility-agreement-explanatory-memorandum
Title of the agreement: Temporary Agreement Between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility
1. Introduction
1.1 This explanatory memorandum has been prepared by the Department for International Trade and is laid before Parliament as an unnumbered Command Paper.
2. Subject matter and purpose of the Treaty
2.1 The United Kingdom of Great Britain and Northern Ireland (the “UK”) participates in a number of international agreements as a result of, or relevant to, its previous membership of the European Union (“the EU”), which help underpin the UK’s relationship with third countries and international organisations.
2.2 Now the UK has left the EU, the Free Movement of Persons Agreement 1999 between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, will cease to apply to the UK at the end of the Transition Period. The purpose of this agreement, the Temporary Agreement Between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility (“the Services Mobility Agreement (SMA)”), is to supplement the Agreement Between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation Following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons Agreement (“the Citizens’ Rights Agreement”) signed in 2019. This facilitates service supply between each party and protects the economic value this provides after the end of the Transition Period.
2.3 The SMA is accompanied by an exchange of notes. The exchange of notes sets out an obligation for the UK to endeavour to ensure that the UK’s National Recognition Information Centre (“NARIC”) assesses whether Swiss qualifications demonstrate equivalent level of knowledge to a university degree of the UK, as required under our immigration rules.
3. Background
3.1 On 31 January 2020, the Citizens’ Rights Agreement entered into force. This sets out the rights of citizens who have moved to live and work in the other party before the end of the transition period and provides for the continued recognition of qualifications where previously agreed, as well as the ability to continuously provide a service if a contract was signed before the end of the Transition Period. After the Transition Period, the SMA will temporarily govern arrangements for the movement of natural persons to supply services and sets out a framework to continue dialogue on the recognition of qualifications.
3.2 Switzerland was the UK’s 3rd largest trading partner outside the European Union and 7th largest export market overall in 2019. Total trade (i.e., exports plus imports) in services between the UK and Switzerland amounted to £17.3 billion in 2019[footnote 1] It is, therefore, important that we maintain arrangements for the movement of service suppliers and the recognition of qualifications in a bilateral UK-Switzerland agreement in order to provide greater certainty for businesses, consumers, and investors in both our countries until a longer-term arrangement is agreed.
4. Content
4.1 The SMA sets out the obligations for the UK and Switzerland regarding the movement of natural persons for the supply of a service as contractual service suppliers and independent professionals. It will allow Swiss service suppliers to deliver contracts in the UK and will continue access for UK service suppliers to provide services in Switzerland for up to 90 days per year. It also reaffirms the abilities of UK and Swiss authorities to conclude recognition arrangements and provides for the continued dialogue of UK and Swiss officials on long-term arrangements for the recognition of professional qualifications working within a recognition of professional qualifications working group established by the UK and Switzerland.
4.2 Other Business Services was the top UK services export to Switzerland in 2019, accounting for 51.3% (£6.3 billion) of total UK services exports to Switzerland. This included legal, accounting, management consulting and public relations services (£1.8 billion), research and development services (£1.2 billion), and architectural, engineering, scientific and other technical services (£0.2 billion)[footnote 2]. Movement of natural persons (known as mode 4) was important for UK service suppliers to Switzerland with UK residents making 383,000 business visits to Switzerland in 2019[footnote 3]. Experimental data suggests that mode 4 accounted for 12.7% of total UK services exports to Switzerland in 2018[footnote 4].
4.3 The SMA is intended to take effect when the Free Movement of Persons Agreement ceases to apply to the UK (or as soon as possible thereafter). The SMA will initially apply for two years unless the UK and Switzerland agree otherwise.
4.4 The SMA sets out the process that must be followed if the Parties wish to make amendments. In the UK, amendments to an agreement that are subject to a formal exchange of notes to confirm completion of internal procedures would engage the parliamentary scrutiny process set out in the Constitutional Reform and Governance Act 2010 (CRaG Act 2010).
4.5 Article 6 of the SMA sets out a mechanism by which either Party can enter into consultations should it consider a relevant measure implemented by the other Party to be inconsistent with the agreement.
4.6 The SMA can be terminated by either Party six months after the receipt of the intention to do so by the other Party.
5. Implementation
5.1 The SMA will be implemented by laying a statement of changes to the immigration rules before Parliament, using powers under the Immigration Act 1971.
6. Territorial application
6.1 The territorial application of the SMA is the UK and Gibraltar.
6.2 The Government of Gibraltar has been consulted and the UK Government is working with it to ensure any necessary implementation will have taken place ahead of entry into force of the SMA.
6.3 The relevant Secretaries of State have been informed of the application of the Agreement to the territories for which they are responsible.
7. Financial
7.1 There will be no direct financial implications beyond those needed to cover the process of ratifying the SMA.
8. Human rights
8.1 There are no human rights implications arising from the SMA.
9. Consultation
9.1 Devolved Administrations (DA)
9.1 The SMA relates in part to the movement of natural persons which is a matter reserved to Westminster. The other part relates to the recognition of professional qualifications which is a matter devolved to Scotland, Northern Ireland and Wales, and the UK Government routinely updated the Devolved Administrations on the negotiations.
9.2 Crown Dependencies and Overseas Territories
9.2 HMG has also consulted Gibraltar on the progress of the SMA and is working closely with the Government of Gibraltar to ensure any legislative measures necessary to implement the Agreement are enacted prior to its entry into force.
10. Provisional application
10.1 Provisional application is a mechanism which enables the parties to apply a treaty ‘provisionally’ for a period of time prior to it entering into force, provided that this is in accordance with the relevant party’s domestic legislation and that any necessary domestic implementing legislation is in place. While the Government is committed to providing Parliament with opportunities to scrutinise such international agreements in accordance with the procedures provided for in the CRaG Act 2010, in the event that the Agreement has not completed scrutiny at the point the existing EU arrangements cease to apply to the UK, it may be necessary to provisionally apply the Agreement pending the conclusion of that scrutiny process.
10.2 In accordance with Article 19 of the Treaty, the UK and Switzerland agree to apply the Treaty provisionally from the later of: a) the date on which the Free Movement of Persons Agreement ceases to apply to the UK; or b) the date of the last of the UK and Switzerland’s respective notification of the completion of its internal requirements and procedures for provisional application.
10.3 The UK has used provisional application on a number of occasions in its independent treaty relations and a number of existing EU international agreements have also been provisionally applied. Provisional application is recognised by Article 25 of the Vienna Convention on the Law of Treaties 1969.
11. Ministerial responsibility
11.1 The Secretary of State for International Trade has overall responsibility for the UK’s policy relating to the UK’s trade relations with Switzerland and for this Treaty. The Secretary of State for Business, Energy and Industrial Strategy also has a policy interest.
11.2 The Secretary of State for Foreign and Commonwealth Affairs has overall responsibility for the UK’s policy relating to the UK’s relations with Switzerland.
11.3 The Home Secretary is responsible for the UK’s domestic immigration system
RT HON ELIZABETH TRUSS MP
Secretary of State for International Trade and President of the Board