1Die Schweiz steuert die Zuwanderung von Ausländerinnen und Ausländern eigenständig.
2Die Zahl der Bewilligungen für den Aufenthalt von Ausländerinnen und Ausländern in der Schweiz wird durch jährliche Höchstzahlen und Kontingente begrenzt. Die Höchstzahlen gelten für sämtliche Bewilligungen des Ausländerrechts unter Einbezug des Asylwesens. Der Anspruch auf dauerhaften Aufenthalt, auf Familiennachzug und auf Sozialleistungen kann beschränkt werden.
3Die jährlichen Höchstzahlen und Kontingente für erwerbstätige Ausländerinnen und Ausländer sind auf die gesamtwirtschaftlichen Interessen der Schweiz unter Berücksichtigung eines Vorranges für Schweizerinnen und Schweizer auszurichten; die Grenzgängerinnen und Grenzgänger sind einzubeziehen. Massgebende Kriterien für die Erteilung von Aufenthaltsbewilligungen sind insbesondere das Gesuch eines Arbeitgebers, die Integrationsfähigkeit und eine ausreichende, eigenständige Existenzgrundlage.
4Es dürfen keine völkerrechtlichen Verträge abgeschlossen werden, die gegen diesen Artikel verstossen.
Art. 121a BV regulates immigration to Switzerland. This constitutional provision was created through the acceptance of the popular initiative «Against Mass Immigration» on 9 February 2014. It establishes how Switzerland may determine who should be allowed to enter the country.
The provision obliges the Confederation to control immigration independently. This means: Switzerland shall decide autonomously, without pressure from other countries. The Confederation must set annual maximum numbers (upper limits for the number of persons) and quotas (sub-quantities for specific groups).
When admitting foreign nationals, three criteria must be considered: overall economic benefit (advantage for the economy), priority for nationals (Swiss citizens and persons already living in Switzerland are given preference) and capacity for integration (willingness and ability to integrate).
The provision prohibits new international treaties that contradict this immigration control. However, existing agreements such as the Agreement on the Free Movement of Persons with the EU remain valid.
Example: A German company wants to send an Indian IT specialist to its Swiss subsidiary. The authorities must examine: Does this bring economic benefit? Was the position first offered to Swiss citizens and permanent residents? Can the person integrate into Swiss society? Additionally, the annual upper limit for third-country nationals may not be exceeded.
Art. 121a BV is not directly applicable. This means: Individuals cannot derive rights directly from it. The provision must first be implemented through legislation. This occurred in 2016 with a «light» solution that respects the Agreement on the Free Movement of Persons: Employers must first report vacant positions in professions with high unemployment to the Regional Employment Centre before they can hire EU citizens.
N. 1 The popular initiative "Against mass immigration" was submitted on 14 February 2012 with 135,557 valid signatures (BBl 2012 3869). The Federal Council recommended rejection of the initiative without a counter-proposal (BBl 2013 291, 325). In its dispatch of 7 December 2012, it warned of incompatibility with the Agreement on the Free Movement of Persons and negative economic consequences.
N. 2 The initiative was adopted on 9 February 2014 with 50.3% yes votes and 14.5 cantons (BBl 2014 4117). The narrow majority reflected societal polarisation on the migration issue. The adoption occurred despite warning references to endangering bilateral treaties with the EU.
N. 3 Parliamentary implementation took place on 16 December 2016 with a "preference for local workers light" solution that respected the bilateral agreements (AS 2018 733). This minimal solution led to the launch of the limitation initiative, which was rejected on 27 September 2020 with 61.7% no votes.
N. 4 Art. 121a Cst. is systematically positioned between the general foreign nationals competence (Art. 121 Cst.) and the asylum provisions (Art. 121b–e Cst.). The norm forms a special provision to Art. 121 Cst. for the area of immigration control.
N. 5 The provision stands in tension with various constitutional principles: → Art. 5 Cst. (international law as a limit on state action), → Art. 8 Cst. (legal equality and prohibition of discrimination), → Art. 9 Cst. (protection against arbitrariness), ↔ Art. 13 Cst. (protection of privacy), ↔ Art. 25 Cst. (protection against expulsion) and → Art. 27 Cst. (economic freedom).
N. 6 Particularly conflict-prone is the relationship to → Art. 54 Cst. (foreign affairs) and → Art. 190 Cst. (supremacy of federal law). The norm creates a constitutionally immanent conflict between immigration control and international law obligations.
N. 7 The term "independent" means, according to Uebersax (BSK BV, Art. 121a N. 12), more than mere programmatic content — it is a normative task norm. The Federal Council, however, took the view that para. 1 had primarily programmatic character. Independence does not exclude international law commitments but requires national scope for action.
N. 8 "Control" encompasses quantitative and qualitative aspects of immigration. It requires active measures by the legislature, not merely passive acceptance of migration-related developments.
N. 9 "Annual ceilings" are absolute upper limits for total immigration. "Quotas" designate sub-quantities for specific categories (sectors, qualifications, countries of origin). The terms are not to be used synonymously.
N. 10 The inclusion of cross-border commuters is disputed. While the Federal Council wanted to subject cross-border commuters to numerical limitation, Uebersax (BSK BV, Art. 121a N. 25) argues that cross-border commuters are only conditionally immigrants, which is why limitation measures are not mandatory.
N. 11 The "overall economic benefit" requires an economic perspective beyond the individual interests of employers. This includes labour market effects, infrastructure costs and social impacts.
N. 12 "Preference for local workers" privileges persons already integrated into the Swiss labour market. The parliamentary implementation as a notification obligation for vacant positions does not, according to critics, meet the constitutional requirements.
N. 13 "Integration capability" requires a prognosis decision about future integration. Relevant criteria are language skills, professional qualifications and willingness to participate in social life.
N. 14 The prohibition of new international law treaties applies directly according to BGE 142 II 35. The question of extending existing treaties is disputed: Epiney (Jusletter of 2.6.2014) argues that extensions are permissible as long as the fate of the basic treaty remains open. Uebersax (BSK BV, Art. 121a N. 174) sees the EU as a whole, which is why extensions are also inadmissible if the basic treaty is incompatible.
N. 15 The direct applicability of Art. 121a Cst. is disputed. According to Epiney (Jusletter of 2.6.2014), paragraphs 1–3 can be directly applicable under certain circumstances. The Federal Office of Justice and Uebersax (BSK BV, Art. 121a N. 25) argue, however, that paragraphs 1–3 are not directly applicable and require legislative implementation. The Federal Supreme Court followed the second view in BGE 142 II 35.
N. 16 Art. 121a Cst. does not give rise to subjective legal claims for individuals. Neither Swiss citizens nor permanent residents can derive preferential permit issuance directly from the constitutional norm (Federal Administrative Court judgment C-2637/2015 of 6.6.2016).
N. 17 The norm has effect as a public interest in foreign nationals law interest assessments without, however, undermining fundamental rights (Administrative Court judgment B 2024/162 of 4.3.2025).
#Relationship to the Agreement on the Free Movement of Persons
N. 18 The central point of dispute concerns compatibility with the AFMP. Heselhaus/Hänni (SZIER 2013, 19) see an irresolvable contradiction. Kunz (ZaöRV 2014, 329) advocates pragmatic solution approaches. Schlegel/Sieber-Gasser (Jusletter of 17.3.2014) propagated a "third way" between free movement of persons and isolation.
N. 19 On the admissibility of safeguard clauses, Epiney (BSK BV, Art. 121a N. 79–80) and Tobler (Jusletter of 16.2.2015) argue these are compatible with Art. 121a Cst. Uebersax (BSK BV, Art. 121a N. 80) emphasises the constitutionally required legislative flexibility.
N. 20 The Federal Council interpreted the implementation mandate restrictively in light of international law obligations (Federal Office of Justice, interpretation of 8.4.2014). Critics like Uebersax (Jusletter of 14.4.2014) demanded more literal implementation. The parliamentary solution sought a middle way between constitutional mandate and treaty loyalty.
N. 21 For legal application, a distinction must be made between EU/EFTA citizens and third-country nationals. For the former, the AFMP continues to apply primarily; for the latter, the more restrictive FNIA with quota system applies.
N. 22 Croatian nationals form a special case: They cannot invoke the AFMP since the extension agreement could not be ratified according to Art. 121a para. 4 Cst. (judgment 2C_128/2015).
N. 23 In foreign nationals law hardship applications, Art. 121a Cst. must be included as an expression of public interest in restrictive migration policy in the interest assessment, without, however, justifying schematic application.
N. 24 The notification obligation for vacant positions in professions with above-average unemployment (Art. 21a FNIA) represents the minimal implementation of preference for local workers. Further-reaching measures would be constitutionally permissible but problematic under international law.
N. 25 For future state treaties: Every new migration-related treaty must be measured against the standard of Art. 121a Cst. This particularly concerns institutional agreements with dynamic legal adoption in the migration area.
Case Law on Art. 121a FC
#Direct Applicability and Relationship to International Law
The Federal Supreme Court established as a leading decision immediately after adoption of the initiative that Art. 121a FC is not directly applicable. The provision requires implementation through negotiations and legislation.
«Art. 121a FC is therefore not directly applicable in case law. A conflict with international treaties could arise if a negotiated solution with the EU were not possible, if domestic legal changes should deviate from the Agreement on the Free Movement of Persons and if these could not be applied in accordance with the AFMP through interpretation conforming to international law.»
The judgment confirmed the continued validity of the Schubert practice in free movement law and the primacy of international law obligations.
The Federal Supreme Court confirmed that the so-called Schubert practice does not apply to free movement law between Switzerland and the EU, as it concerns sectoral participation in the internal market.
«The aforementioned exception according to the so-called 'Schubert practice' does not apply in relation to the European Union and the obligations undertaken by Switzerland under treaty in free movement law, because this involves an alignment of legal systems (sectoral participation in the internal market) concerning the realisation of partially adopted fundamental freedoms.»
The Federal Supreme Court confirmed that Croatian nationals can no longer invoke the Agreement on Free Movement of Persons since the adoption of Art. 121a FC, as contradictory treaties may no longer be concluded.
The case law clarified that the prohibition under Art. 121a para. 4 FC must be observed immediately, even if implementing legislation is not yet in place.
Judgment 2C_103/2014 (13 January 2015)
Confirmation of the case law: Croatian nationals cannot invoke the AFMP, as corresponding treaties contradict the autonomous immigration control sought by the constitutional provision.
The St. Gallen Administrative Court recognised Art. 121a FC as an expression of the public interest in a restrictive immigration policy in the balancing of interests in foreign nationals law proceedings.
«That there is a public interest in this is expressed not least in Art. 121a FC. This article was incorporated into the FC following the adoption of the popular initiative 'against mass immigration'.»
Judgment C-2637/2015 (6 June 2016) - Federal Administrative Court
The Federal Administrative Court clarified that no claim to priority permit granting for Swiss citizens or permanent residents can be derived from Art. 121a FC as long as implementing legislation is lacking.
The objection that the lower instance had «not observed the applicant's claim under Art. 121a FC to priority permit granting» was rejected as unfounded.
In foreign nationals law family reunification, Art. 121a FC is included as an expression of the public interest in a restrictive migration policy in the balancing of interests, without however overriding fundamental rights.
The Federal Supreme Court found that in the balancing of interests in foreign nationals law, the best interests of the child must be taken into account, whereby the implementation of a restrictive immigration policy (Art. 121a FC) is to be considered as one criterion among others.
SB170315 (16 January 2018) - Zurich Superior Court
The Zurich Superior Court dealt with the problem of the relationship between expulsion and the Agreement on Free Movement. It found that Parliament was aware of the possible conflict with the AFMP when enacting the expulsion provisions.
«Parliament was therefore aware of this problem when it enacted the now applicable provisions on expulsion, and thus accepted a potentially resulting conflict with the AFMP.»
SB180093 (28 September 2018) - Zurich Superior Court
Renewed confirmation of the case law on the limits of expulsion for EU/EFTA citizens despite Art. 121a FC, as international law obligations continue to exist.
The Federal Supreme Court assessed an advertisement that promoted support for the mass immigration initiative as racially discriminatory. The headline «Kosovars slit up Swiss!» was qualified as incitement to hatred or discrimination.
The judgment shows the limits of permissible political expression in the context of migration policy.
A-2798/2016 (30 May 2017) - Federal Administrative Court
The Federal Administrative Court mentioned the parliamentary implementation of Art. 121a FC of 16 December 2016, in which the bilateral agreements with the EU were respected.
The Federal Supreme Court dismissed a complaint regarding the popular vote of 9 February 2014 on the mass immigration initiative and confirmed the proper conduct of the vote.
The case law confirms that Art. 121a FC entered into force immediately, but requires implementation through legislation. The three-year deadline for renegotiating international treaties (Art. 197 No. 11 FC) was respected.
The case law shows that existing international law obligations continue to apply despite Art. 121a FC until renegotiation occurs or the treaties are terminated.