1The Confederation is responsible for legislation on entry to and exit from Switzerland, the residence and the permanent settlement of foreign nationals and on the granting of asylum.
2Foreign nationals may be expelled from Switzerland if they pose a risk to the security of the country.
3Irrespective of their status under the law on foreign nationals, foreign nationals shall lose their right of residence and all other legal rights to remain in Switzerland if they:
are convicted with legal binding effect of an offence of intentional homicide, rape or any other serious sexual offence, any other violent offence such as robbery, the offences of trafficking in human beings or in drugs, or a burglary offence; or
have improperly claimed social insurance or social assistance benefits.
4The legislature shall define the offences covered by paragraph 3 in more detail. It may add additional offences.
5Foreign nationals who lose their right of residence and all other legal rights to remain in Switzerland in accordance with paragraphs 3 and 4 must be deported from Switzerland by the competent authority and must be made subject to a ban on entry of from 5–15 years. In the event of reoffending, the ban on entry is for 20 years.
6Any person who fails to comply with the ban on entry or otherwise enters Switzerland illegally commits an offence. The legislature shall issue the relevant provisions.
85* With transitional provision.
1Switzerland shall control the immigration of foreign nationals autonomously.
2The number of residence permits for foreign nationals in Switzerland shall be restricted by annual quantitative limits and quotas. The quantitative limits apply to all permits issued under legislation on foreign nationals, including those related to asylum matters. The right to permanent residence, family reunification and social benefits may be restricted.
3The annual quantitative limits and quotas for foreign nationals in gainful employment must be determined according to Switzerland's general economic interests, while giving priority to Swiss citizens; the limits and quotas must include cross-border commuters. The decisive criteria for granting residence permits are primarily an application from an employer, ability to integrate, and adequate, independent means of subsistence.
4No international agreements may be concluded that breach this Article.
5The law shall regulate the details.
92* With transitional provision.
Art. 121 BV — Legislation on Foreign Nationals and Asylum
Article 121 BV regulates the Confederation's competence in foreign nationals and asylum law. The Confederation alone determines who may enter Switzerland, how long foreign nationals may stay and when they receive asylum.
The key provisions:
Federal competence: Only the Confederation may enact legislation on the entry and departure, residence and domicile of foreign nationals. Asylum law also falls under federal competence. The cantons implement these laws but cannot create their own rules.
Security expulsion: Foreign nationals can be expelled if they endanger Switzerland's security. This concerns, for example, persons who support terrorist activities.
Automatic loss of residence rights: For serious crimes, foreign nationals automatically lose their right to remain in Switzerland. This applies to convictions for homicide offences (murder, manslaughter), rape, robbery, human trafficking, drug trafficking, burglary offences or social security fraud. An entry ban of 5 to 15 years is imposed. For repeated offences, the ban is 20 years.
Example: An Italian citizen with a settlement permit is sentenced to two years' imprisonment for drug trafficking. Under the law, he must leave Switzerland and receives an entry ban. Only in cases of exceptional hardship may the court refrain from this – for instance if the person was born in Switzerland and is very well integrated.
Criminal liability: Anyone who enters Switzerland illegally despite an entry ban commits an offence and can be punished with imprisonment of up to one year.
These strict rules emerged following the adoption of the so-called "expulsion initiative" in 2010. However, implementation must respect human rights, particularly the protection of the family and the prohibition against sending people to torture or inhuman treatment.
Art. 121 BV — Legislation in the Field of Foreign Nationals and Asylum
N. 1 Art. 121 BV unites various historical lines of development in Swiss migration law. The original version (paras. 1 and 2) stems from the total revision of the Federal Constitution in 1999 and essentially adopted the former Art. 69ter and 70 old Constitution (BBl 1997 I 1, 370). The comprehensive federal competence in foreign nationals law has existed since 1925, that in asylum law since 1979.
N. 2 Paragraphs 3–6 were incorporated into the Constitution through the popular initiative «for the expulsion of criminal foreign nationals (expulsion initiative)» on 28 November 2010. The initiative was accepted with 52.9% of the votes and by 17.5 cantons, although the Federal Council and Parliament had recommended its rejection without a counter-proposal (BBl 2009 5097). The Federal Council had expressed considerable concerns regarding compatibility with international law obligations in its message (BBl 2009 5097, 5107 ff.).
N. 3 The implementation of the expulsion initiative was carried out through the revision of the Criminal Code with the introduction of Art. 66a–66d SCC as well as corresponding amendments to the Foreign Nationals and Integration Act (FNIA), in force since 1 October 2016 (AS 2016 2329). This implementation was in turn influenced by the acceptance of the so-called «enforcement initiative» on 28 February 2016, which was however rejected with 58.9%.
N. 4 Art. 121 BV stands in Chapter 2 «Competences» of Title 3 «Confederation, Cantons and Communes» and regulates the federal competence order in migration and asylum law. The norm is systematically closely linked with → Art. 5 BV (rule of law principle), → Art. 36 BV (restrictions on fundamental rights) and → Art. 49 BV (primacy of federal law).
N. 5 For the fundamental rights position of foreign nationals, particularly relevant are → Art. 8 BV (equality before the law), → Art. 13 BV (protection of privacy) and → Art. 25 BV (protection against expulsion). The norms of the ECHR, notably Art. 8 ECHR (right to respect for private and family life) and Art. 3 ECHR (prohibition of inhuman treatment), constitute applicable law according to → Art. 190 BV and limit the application of Art. 121 BV.
N. 6 A field of tension arises in relation to the Agreement on the Free Movement of Persons (AFMP) with the EU. According to Achermann, BSK BV, Art. 121 N. 27, the comprehensive federal competence enables the regulation of fundamentally all questions concerning the status and position of foreign nationals, while other authors emphasise that the Confederation cannot regulate integration without cooperation with the cantons (Achermann, BSK BV, Art. 121 N. 27).
N. 7 The federal competence under para. 1 is comprehensive and extends to entry and exit, residence, permanent residence as well as granting of asylum. According to BGE 127 II 49, this is an exclusive federal competence that also includes labour market policy measures. The prevailing doctrine recognises this comprehensive competence (Achermann, BSK BV, Art. 121 N. 33), whereby critical voices question the extension to labour market policy areas (Achermann, BSK BV, Art. 121 N. 33).
N. 8 The asylum competence is, according to the message on the Federal Constitution, an exclusive federal jurisdiction (BBl 1997 I 1, 370), whereby this classification is disputed in the doctrine (Achermann, BSK BV, Art. 121 N. 42). The term «asylum» encompasses the temporary granting of protection to persons who are persecuted in their country of origin or whose life and limb are endangered.
b) Security Expulsion (Para. 2)
N. 9 The «political expulsion» under para. 2 enables the removal of foreign nationals when national security is endangered. According to BGE 129 II 193, this also includes activities that are suitable to endanger Switzerland's relations with third states. The measure is subject to the principle of proportionality and the limits of Art. 8 ECHR.
c) Loss of Right of Residence (Paras. 3–6)
N. 10 The catalogue of offences in para. 3 leads to the automatic loss of the right of residence «regardless of the foreign nationals law status». According to BGE 139 I 16, however, these provisions are not directly applicable, but require implementation by the legislature. Implementation was carried out through Art. 66a SCC with a hardship clause that, according to BGE 144 IV 332, enables a proportionality review.
N. 11 The social benefit abuse under para. 3 lit. b encompasses the abusive obtaining of social insurance or social assistance benefits. The specification through Art. 66a para. 1 lit. h SCC requires a legally binding conviction for fraud within the meaning of Art. 146 SCC in connection with social benefits.
N. 12 The primary legal consequence of para. 1 is the comprehensive regulatory authority of the Confederation. The cantons have no own legislative competences in the migration and asylum area, but are responsible for enforcement (Art. 46 BV).
N. 13 Upon realisation of the factual elements under para. 3, the loss of the right of residence occurs. Implementation in Art. 66a–66d SCC provides for an obligatory expulsion from the country, which according to BGE 146 IV 172 is also to be entered in the Schengen Information System (SIS). The duration of the entry ban amounts to fundamentally 5–15 years according to para. 5, in case of repetition 20 years.
N. 14 Illegal entry despite an entry ban is punishable under para. 6. Implementation was carried out through Art. 115 para. 1 lit. a and Art. 119 para. 1 FNIA, which provide for imprisonment up to one year or a monetary penalty.
N. 15 A central point of dispute concerns the scope of the Confederation's integration competence. Achermann represents the position that the federal competence is comprehensive and enables the regulation of all questions concerning the status and position of foreign nationals (Achermann, BSK BV, Art. 121 N. 27). In contrast, other authors emphasise that the Confederation cannot undermine the cantons' competences in education, social affairs and other areas without cooperation with the cantons (Achermann, BSK BV, Art. 121 N. 27).
N. 16 The relationship between Art. 121 paras. 3–6 BV and the Agreement on the Free Movement of Persons is controversially discussed. Jaag/Priuli argue that the expulsion initiative is incompatible with the AFMP (Jusletter of 8.11.2010). Weber, on the other hand, sees implementation variants that enable compatibility (AJP 2012, 1436). The Federal Supreme Court has developed a «specific examination» for EU citizens in BGE 145 IV 55.
N. 17 The interpretation of the non-refoulement principle in the context of the expulsion initiative is disputed. The Federal Council took the view that the initiative could be interpreted in such a way that the non-refoulement principle would be respected, but warned of considerable collisions with rule of law principles (Achermann, BSK BV, Art. 121 N. 54).
N. 18 When applying Art. 121 BV, the hierarchy of legal sources must always be observed. International law obligations, in particular the ECHR and the non-refoulement principle, take precedence according to → Art. 190 BV. The practice of the ECtHR, as in P.J. et R.J. c. Suisse (2024), requires a meticulous balancing of interests.
N. 19 The hardship clause in Art. 66a para. 2 SCC is not to be understood as an exception provision, but as an integral component of the constitutionally compliant implementation. According to BGE 146 IV 105, the examination is to be undertaken based on the common integration criteria, without rigid age requirements.
N. 20 Relevant for practice is the distinction between foreign nationals law measures (revocation, non-renewal) and criminal law expulsions from the country. Both instruments can be applied in parallel, but are subject to different procedures and requirements. Coordination takes place via Art. 62 ff. FNIA on the one hand and Art. 66a ff. SCC on the other hand.
Art. 121 BV — Legislation on Foreign Nationals and Asylum
#Federal Distribution of Powers and Direct Applicability
BGE 127 II 49 (2001)
Federal distribution of powers in foreign nationals law under the new Federal Constitution.
Fundamental decision on the comprehensive legislative competence of the Confederation and the powers of federal authorities in approval procedures.
«According to Art. 121 para. 1 BV (formerly Art. 69ter para. 1 old BV), the Confederation has (comprehensive) legislative competence in the field of foreign nationals law.»
BGE 139 I 16 (2012)
Deportation Initiative: Direct applicability of constitutional provisions.
Leading decision on the question of direct application of Art. 121 paras. 3–6 BV following the adoption of the deportation initiative of 28 November 2010.
«Paragraphs 3-6 of Art. 121, incorporated into the Federal Constitution with the deportation initiative on 28 November 2010, are not directly applicable based on an interpretation committed to practical concordance and due to insufficient specificity, but require implementation by the legislator; they have no precedence over fundamental rights or the guarantees of the ECHR.»
BGE 129 II 193 (2003)
Entry ban for reasons of safeguarding national interests.
Groundbreaking decision on entry bans against settled foreign nationals according to Art. 121 para. 2 BV due to threats to national security.
«The entry ban imposed for reasons of safeguarding national interests (Art. 184 para. 3 BV) against the foreign national settled in Switzerland, who had been active in or for organisations whose activities are likely to further destabilise the situation in Kosovo and adjacent areas and thereby endanger Switzerland's relations with third states, withstands Art. 8 ECHR.»
#Revocation of Residence Permits Following Criminal Offences
BGE 139 I 145 (2013)
Proportionality assessment in grounds for revocation.
Fundamental decision on the relevant criteria for balancing public interests in keeping someone away and private interests in remaining in Switzerland.
«Fundamental adherence to the so-called "Reneja" practice, according to which a foreign national after only a short period of residence and upon conviction to a prison sentence of two years or more is generally not to be granted a residence permit, even if departure cannot be expected of the Swiss spouse or can only be expected with great difficulty.»
BGE 139 I 31 (2012)
Drug trafficking as grounds for revocation.
Significant decision on revocation of a settlement permit for qualified narcotics offences taking into account Art. 121 para. 3 BV.
«With the conviction to a prison sentence of 24 months (suspended), the grounds for revocation under Art. 62 lit. b (in conjunction with Art. 63 para. 1 lit. a) FNA are met [...]. The measure must - like any state action - be proportionate (cf. Art. 5 para. 2 BV; Art. 96 FNA).»
BGE 144 IV 332 (2018)
Hardship clause for mandatory deportation from the country.
Fundamental judgment on the application of the hardship clause according to Art. 66a para. 2 CC for foreign nationals born or raised in Switzerland.
«When exercising the discretion conferred upon it by Art. 66a para. 2 CC, the court must respect constitutional principles. If the requirements of the hardship clause are met, the principle of proportionality enshrined in Art. 5 para. 2 BV requires abstaining from deportation from the country.»
BGE 145 IV 455 (2019)
Health condition as grounds for hardship.
Important decision on considering health condition when examining the hardship clause.
«Deportation from Switzerland can constitute a severe personal hardship case according to Art. 66a para. 2 CC for the person concerned with regard to their health condition or treatment possibilities in the country of origin, or be disproportionate within the meaning of Art. 8 No. 2 ECHR.»
BGE 146 IV 105 (2019)
Hardship examination regarding integration.
Clarification of hardship examination based on standard integration criteria.
«Whether a hardship case exists is determined neither by rigid age requirements, nor does a certain duration of presence automatically lead to the assumption of a hardship case. The hardship examination must be conducted in each case based on standard integration criteria.»
BGE 146 IV 172 (2020)
Registration of deportations from the country in the SIS.
Procedural fundamental decision on registration of entry bans in the Schengen Information System.
«Registration of deportation from the country in the SIS is - like the deportation from the country itself - not subject to the accusatory principle. If the court orders deportation from the country, it must, for third-country nationals, independently of a corresponding application by the public prosecutor, also decide whether the deportation from the country is to be registered in the SIS.»
ECtHR P.J. and R.J. v. Switzerland (2024)
Insufficient balancing of interests in deportation from the country.
Recent ECtHR decision on inadequate proportionality examination by Swiss courts in deportation from the country due to drug trafficking.
«According to the Court, the national courts did not minutely balance the private and public interests at stake. They focused their analysis on the nature and gravity of the offence, without according the necessary weight to other elements of the file.»
ECtHR M.M. v. Switzerland (2020)
Mandatory deportation from the country without automatism.
ECtHR decision on the convention-compliant application of Art. 66a CC.
«Art. 66a CC, concretisation of the result of a popular vote, does not introduce, despite its title "mandatory expulsion", an automatism for expulsion of foreign nationals convicted of offences, without judicial control of the proportionality of the measure.»
Judgment 6B_627/2018 (2019)
Catalogue offences and minimum penalties.
Clarification on the application of Art. 66a CC for catalogue offences without minimum penalty.
BGE 145 IV 55 (2018)
EU freedom of movement law and deportation from the country.
Significant decision on the relationship between the Agreement on the Free Movement of Persons and criminal deportation from the country.
BGE 143 II 113 (2016)
Maximum duration of foreign nationals detention.
Important decision on crediting previous detention periods when calculating maximum duration.
«For the purpose of calculating the maximum permissible total duration of foreign nationals detention, detention periods must be added together in case of multiple detention within the framework of one and the same expulsion procedure.»