1The Confederation shall regulate the acquisition and deprivation of citizenship by birth, marriage or adoption. It shall also regulate the deprivation of Swiss citizenship on other grounds, together with the reinstatement of citizenship.
2It shall legislate on the minimum requirements for the naturalisation of foreign nationals by the Cantons and grant naturalisation permits.
3It shall enact simplified regulations on the naturalisation of:
third generation immigrants;
stateless children.6
Art. 38 BV — Acquisition and Loss of Citizenship
#Overview
Art. 38 BV governs the competences for Swiss citizenship. It determines who acquires or loses Swiss citizenship and which authority is responsible for this.
The Confederation determines according to para. 1 who acquires citizenship by birth, marriage or adoption. It also governs when someone loses citizenship and how renaturalisation works. These rules are set out in the Citizenship Act (BüG, SR 141.0).
According to para. 2, the cantons are responsible for the naturalisation of foreigners. However, the Confederation enacts minimum rules that apply everywhere. For example, every naturalisation candidate must have lived in Switzerland for at least ten years (Art. 9 para. 1 BüG). The Confederation also grants the naturalisation permit, without which no naturalisation is possible.
Para. 3 determines that certain persons can be naturalised more easily. These include young people of the third generation of foreigners and stateless children. For them, shortened waiting periods and simplified procedures apply (Art. 24 ff. BüG).
Example: Anna is German and has lived in Zurich for 12 years. She meets the minimum requirements of the Confederation and can apply to the municipality for naturalisation. The municipality examines her integration, the canton her language skills and the Confederation grants the final permit.
Art. 38 FC — Acquisition and Loss of Citizenship
#Doctrine
#1. Legislative History
N. 1 Art. 38 FC corresponds in its basic structure to the former Art. 44 para. 3 and Art. 46 of the Federal Constitution of 1874. In its message of 20 November 1996 (BBl 1997 I 597 f.), the Federal Council stated that the provision was intended to regulate federal competences regarding the acquisition and loss of citizenship by descent, marriage and adoption, as well as naturalisation by the cantons. The division between automatic acquisition of citizenship by operation of law (para. 1) and the acquisition of citizenship by naturalisation constituted through a sovereign act (para. 2) remained unchanged from the preliminary draft; the Confederation's naturalisation authorisation was expressly retained.
N. 2 In the parliamentary deliberations, paragraph 3 was the actual point of contention. Rapporteur Aeby (S, FR) presented the provision in the Council of States — at that time still titled Art. 32b — and proposed a new paragraph to facilitate the naturalisation of stateless children. Federal Councillor Leuenberger acknowledged that this addition went beyond a mere «mise à jour» of existing law, but that it corresponded to international standards; he raised no objection. In the National Council, Rapporteur Hubmann Vreni (S, ZH) emphasised that the committee had taken up a concern of National Councillor Zisyadis with the provision on facilitated naturalisation for stateless children. The regulation of the third generation of foreigners was incorporated into para. 3 lit. a in the course of the elimination of differences; both chambers approved the compromise motion on 14/15 December 1998 and adopted the Constitution in the final vote of 18 December 1998.
N. 3 The constitutional basis for the facilitated naturalisation of the third generation (para. 3 lit. a) was not politically activated until the popular initiative «for the naturalisation of foreigners who have grown up in Switzerland». Following its rejection (2004), the Federal Council launched implementing legislation, which ultimately resulted in Art. 24a–24c of the revised Federal Act on Swiss Citizenship of 20 June 2014 (SCA; SR 141.0), in force since 1 January 2018.
#2. Systematic Classification
N. 4 Art. 38 FC belongs to the section «Citizenship and Political Rights» (Art. 37–40 FC) and, together with → Art. 37 FC, forms the constitutional foundation of the tripartite citizenship (municipal, cantonal, and Swiss citizenship). Art. 37 FC defines citizenship as a status; Art. 38 FC regulates the competences for its constitution and dissolution. The provision is a competence norm in the sense of the federal division of responsibilities: in para. 1 it confers on the Confederation an exclusive legislative competence for the acquisition and loss of citizenship by status, and in para. 2 a competence to enact minimum provisions, which leaves the cantons and municipalities considerable discretion (↔ Art. 3 FC). Para. 3 contains a special mandate to promote, which is to be implemented through legislation.
N. 5 As a competence norm, Art. 38 FC does not establish any subjective rights to naturalisation. This distinguishes the provision structurally from the fundamental rights of Art. 7–34 FC. However, fundamental rights must be observed in naturalisation proceedings, in particular the prohibition of arbitrariness (→ Art. 9 FC), the principle of equality before the law (→ Art. 8 para. 1 FC) and the prohibition of discrimination (→ Art. 8 para. 2 FC); → Art. 29 FC applies with regard to procedural guarantees.
N. 6 The citizenship law framed constitutionally by Art. 38 FC is elaborated in the SCA (SR 141.0) and in the Citizenship Ordinance (CO; SR 141.01). The ECHR contains no guarantee of the acquisition of a particular nationality; however, Art. 8 ECHR (protection of private and family life) may be engaged upon the refusal or loss of nationality, insofar as this leads to a disproportionate interference with family life (ECtHR, Karassev v. Finland, No. 31414/96, decision of 12 January 1999).
#3. Content of the Provision
3.1 Para. 1 — Citizenship by Operation of Law
N. 7 Paragraph 1 confers on the Confederation exclusive competence to regulate the acquisition and loss of Swiss citizenship «by descent, marriage and adoption», as well as loss «for other reasons» and re-naturalisation. These modes of acquisition occur by operation of law or through an act of the state, without the multi-stage procedure typical of ordinary naturalisation. The federal legislative implementation is found in particular in Art. 1–9 and 26–43 SCA.
N. 8 The law understands «descent» to mean acquisition by descent (ius sanguinis): a child acquires Swiss citizenship at birth if one parent is a Swiss citizen (Art. 1 SCA). The ius soli — acquisition through birth on Swiss soil — is provided under current law only as a catch-all provision for children who would otherwise be stateless (Art. 1 para. 2 SCA). The former privileged position of acquisition through the father was abolished with the 1985 revision; since then equal treatment of both parents applies, which corresponds to the requirement of → Art. 8 para. 3 FC.
N. 9 The term «loss for other reasons» in para. 1 sentence 2 covers in particular loss through the voluntary acquisition of another nationality and through permanent residence abroad. Art. 42 ff. SCA regulate release from Swiss citizenship. Rhinow/Schefer/Uebersax note that para. 1 also grants the Confederation the competence to structure the loss of citizenship in such a way that statelessness is avoided; this corresponds to Switzerland's obligations under the Convention on the Reduction of Statelessness of 1961 (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 293 f.).
3.2 Para. 2 — Naturalisation Authorisation and Minimum Provisions
N. 10 Paragraph 2 regulates a concurrent legislative competence in the area of ordinary naturalisation. The Confederation enacts «minimum provisions» and grants the «naturalisation authorisation»; the actual decision on the granting of cantonal and municipal citizenship remains with the cantons and — in accordance with cantonal law — with the municipalities. The Federal Supreme Court has confirmed this in consistent case law: «Art. 38 para. 2 FC obliges the Confederation to enact minimum provisions on the naturalisation of foreign nationals by the cantons. The cantons are free to specify the naturalisation requirements insofar as they may lay down more detailed rules regarding residency requirements or suitability» (BGE 138 I 305 E. 1.4.3).
N. 11 The «minimum provisions» within the meaning of para. 2 constitute a floor from which the cantons may not deviate downwards; stricter cantonal requirements are permissible within the framework of the Constitution, provided they do not in turn violate fundamental rights and do not make naturalisation excessively difficult (BGE 146 I 49 E. 2.2; BGE 148 I 271 E. 4.2). The substantive minimum requirements for ordinary naturalisation are regulated in Art. 11 f. SCA (integration, familiarity with Swiss conditions, respect for the legal order, no threat to security).
N. 12 The Confederation's «naturalisation authorisation» (today: authorisation of the State Secretariat for Migration) is a constitutive prerequisite for the validity of cantonal and communal naturalisation (Art. 13 para. 2 SCA). The authorisation is granted when the requirements of federal law are met; it includes a guarantee of access to the courts: appeals in public law matters to the Federal Supreme Court are available against decisions of the Federal Administrative Court (BGE 149 I 91 E. 2 f.).
N. 13 Burgher communities do not derive any autonomous authority in naturalisation proceedings from federal law; such authority arises solely from cantonal law (BGE 146 I 83 E. 2.3). The canton may, within the scope of its competence, prescribe procedural and evidentiary rules for the municipalities — in particular statutory presumptions for individual naturalisation criteria — as long as it does not hollow out the fundamental decision-making competence secured under cantonal constitutional or communal constitutional law (BGE 146 I 83 E. 4.3 and 4.4).
3.3 Para. 3 — Facilitated Naturalisation for Specific Groups
N. 14 Paragraph 3 contains a constitutional mandate to the legislature to «facilitate» the naturalisation of two groups: (a) persons of the third generation of foreign nationals and (b) stateless children. The mandate obliges the legislature to create a regime that effectively provides more favourable conditions for these groups than in the ordinary procedure; a subjective right to naturalisation does not follow from it directly. Häfelin/Haller/Keller/Thurnherr classify para. 3 as a legislative mandate prescribing a certain substantive direction without determining the specific design (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 2222 f.).
N. 15 Lit. a (third generation of foreign nationals): «Third generation» refers to persons whose grandparents immigrated to Switzerland as foreign nationals and of whom one parent has lived in Switzerland since birth. The legislative implementation in Art. 24a SCA (since 1 January 2018) provides for a simplified application procedure without a federal naturalisation authorisation and dispenses with the ordinary residency requirements. As the central validity requirement, the applicant must have grown up in Switzerland.
N. 16 Lit. b (stateless children): The catch-all principle in favour of stateless children goes back to an initiative in the parliamentary deliberations (→ N. 2). The legislative implementation was effected in Art. 31 SCA: stateless children born in Switzerland who fulfil the requirements for naturalisation may request it; the procedure is designed to be simplified and low-cost. This arrangement corresponds to the obligation under the Convention relating to the Status of Stateless Persons of 1954 (SR 0.142.40).
#4. Legal Consequences
N. 17 Art. 38 FC as a competence norm produces the following legal consequences at the level of federal law: First, federal legislative provisions on the acquisition and loss of citizenship by descent, marriage and adoption — that is, the entire status law — are exhaustive; cantonal provisions in this area are contrary to federal law (→ Art. 49 FC). Second, para. 2 limits cantonal legislative freedom in naturalisation law to specifications above the minimum federal requirements.
N. 18 For naturalisation authorities, the combination of Art. 38 para. 2 FC and the fundamental rights guarantees (→ Art. 8 para. 1, Art. 8 para. 2, Art. 9 FC) produces the following legal consequence: while there is no legal entitlement to naturalisation, it would nonetheless be arbitrary and contrary to the principle of equality to refuse naturalisation once all statutory requirements have been met. The Federal Supreme Court has expressly stated this in its leading decision: «Even without an entitlement to naturalisation, it would be arbitrary and contrary to the principle of equality to refuse naturalisation to an applicant who fulfils all naturalisation requirements» (BGE 146 I 49 E. 2.7; confirmed in BGE 138 I 305 E. 1.4.5). The legal position thus approaches that of an entitlement situation (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 300 ff., with explicit reference in the decision itself).
N. 19 The integration requirements in naturalisation proceedings must «overall be proportionate and free of discrimination and must not appear excessive» (BGE 146 I 49 E. 4.3). Individual deficits in one criterion may be offset by strengths in others; focusing on a single criterion is impermissible unless that criterion alone carries decisive weight (BGE 146 I 49 E. 4.4). With regard to the assessment of language requirements, this means: the non-recognition of a sufficient school-leaving certificate grade as adequate proof of language proficiency violates the prohibition of arbitrariness and the principle of equality before the law (BGE 148 I 271 E. 5.11).
N. 20 The prohibition of discrimination (→ Art. 8 para. 2 FC) applies without restriction in naturalisation proceedings. The blanket exclusion of an entire group — such as persons with mental disabilities who lack the capacity to form their own will — is discriminatory unless a qualified justification exists (BGE 139 I 169 E. 7.3.1). The naturalisation authority must instead take into account the concrete capabilities of the person with a disability and ascertain a presumed intention to seek naturalisation.
#5. Contested Issues
N. 21 There is scholarly disagreement as to the legal nature of the claim of a person who fulfils all statutory naturalisation requirements. Achermann/von Rütte argue that in this constellation no discretion to refuse remains and the situation approximates that of an entitlement (Achermann/von Rütte, BSK BV, Art. 38 N. 35). Rhinow/Schefer/Uebersax characterise this as an «approximation» of an entitlement, without grounding it dogmatically (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 300 ff.). The Federal Supreme Court has consistently left this question open and formally denied an actual entitlement to naturalisation, while at the same time holding in substance that a refusal upon fulfilment of all requirements would be «arbitrary» (BGE 138 I 305 E. 1.4.5; BGE 146 I 49 E. 2.7). This tension has been identified in the literature as a gap in protection: the Federal Supreme Court affirms judicial reviewability but withholds recognition of a genuine subjective right.
N. 22 Also contested is the scope of cantonal legislative competences vis-à-vis the Confederation's «minimum provisions». Gutzwiller argues that the term «further integration criteria» in Art. 12 para. 3 SCA does not empower the cantons to modify the federal criteria set out in Art. 12 para. 1 SCA, but only to add independent additional criteria (Gutzwiller, CR Cst., Art. 38 N. 36 f., cited in BGE 148 I 271 E. 4.3). Achermann/von Rütte and von Rütte, by contrast, emphasise a wider cantonal margin of discretion — as long as cantonal requirements respect the Constitution and do not make naturalisation excessively difficult — and invoke the federal structural principle (Achermann/von Rütte, BSK BV, Art. 38 N. 37 f.; von Rütte, Das neue Bürgerrechtsgesetz und dessen Umsetzung in den Kantonen, Jahrbuch für Migrationsrecht 2017/2018, p. 68 ff.). The Federal Supreme Court expressly left the question open in BGE 148 I 271 E. 4.3.
N. 23 With regard to communal autonomy in naturalisation matters, the Federal Supreme Court clarified in BGE 146 I 83 E. 2.3 that municipalities cannot derive their autonomy from federal law. This is in contrast to an earlier, less clear tendency in the case law (BGE 138 I 242 E. 5.2), which afforded municipal assemblies a «wide margin of discretion» without specifying the competence basis. Müller/Schefer pointed out at an early stage that the retention of municipal assembly decisions increased the risk of discrimination, because minority situations were more difficult to subject to judicial review in anonymous assembly decisions (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729).
#6. Practical Notes
N. 24 The federalist competence structure of Art. 38 FC produces in naturalisation practice a three-tier procedure (Confederation, canton, municipality) that requires coordination. For cantonal and communal naturalisation authorities, the following applies: (1) The minimum federal requirements (Art. 11 f. SCA) are mandatory; cantonal requirements are permissible only as specifications or additions. (2) Language requirements must be aligned with the CEFR reference framework and be proportionate; standardised school-leaving certificates may suffice as proof of language proficiency (BGE 148 I 271 E. 5.11). (3) The assessment of integration must be carried out as an overall evaluation of all criteria; shortcomings in one respect may be offset by strengths in others (BGE 146 I 49 E. 4.4).
N. 25 In proceedings involving particularly vulnerable persons — persons with disabilities, children lacking the capacity to consent — the naturalisation authority must ascertain a presumed intention to seek naturalisation and adapt the naturalisation procedure to the person's concrete capabilities. A blanket exclusion of a group of persons is discriminatory (BGE 139 I 169 E. 7.3.1). For stateless children, facilitated naturalisation under Art. 31 SCA must moreover be examined before ordinary proceedings are initiated (→ Art. 38 para. 3 lit. b FC).
N. 26 Regarding legal remedies: negative naturalisation decisions must be reasoned (Art. 51 f. SCA; basis in the right to be heard under → Art. 29 para. 2 FC). Persons seeking naturalisation may, in proceedings by way of subsidiary constitutional complaint, invoke the prohibition of arbitrariness (→ Art. 9 FC) and the principle of equality before the law (→ Art. 8 para. 1 FC), once Art. 14 (old) SCA has established a sufficiently clearly defined legal position (BGE 138 I 305 E. 1.4.6). The prohibition of discrimination (→ Art. 8 para. 2 FC) may always be invoked directly (BGE 138 I 305 E. 1.2). Appeals in public law matters to the Federal Supreme Court are admissible against decisions of the Federal Administrative Court in authorisation matters (BGE 149 I 91 E. 2 f.).
N. 27 For cases of naturalisation of the third generation under Art. 24a SCA and the mandate under Art. 38 para. 3 lit. a FC, note: the simplified procedure requires that the applicant has grown up in Switzerland, holds a permanent residence permit C, and fulfils the further integration requirements. The communal and cantonal naturalisation authorisation is replaced by the federal naturalisation authorisation; the canton is merely consulted. This is a deliberate departure from the ordinary competence structure of para. 2, based on the constitutional mandate of para. 3 lit. a.
Art. 38 BV
#Case Law
#Distribution of Powers and Principles
BGE 146 I 49 of 18.12.2019
Federal distribution of powers in ordinary naturalization. The requirements for naturalization are divided between the Confederation, cantons and municipalities.
«Art. 38 para. 2 BV obliges the Confederation to enact minimum provisions on the naturalization of foreign nationals by the cantons. The cantons are free in designing naturalization requirements insofar as they can make specifications regarding residency requirements or suitability.»
BGE 148 I 271 of 8.3.2022
Constitutional foundations of language requirements in ordinary naturalization. Art. 38 para. 2 BV authorizes the Confederation to enact minimum provisions.
«Art. 38 para. 2 BV grants the Confederation the power to enact minimum provisions on the naturalization of foreign nationals by the cantons. The minimum provisions of the Confederation take precedence over cantonal and municipal regulations.»
#Federal Naturalization Authorization
BGE 149 I 91 of 19.12.2022
Right to legal remedies in federal naturalization authorization. Appeal to the Federal Court is available against decisions of the Federal Administrative Court.
«Against decisions of the Federal Administrative Court on the granting of federal naturalization authorization, an appeal in public law matters to the Federal Court is available. The constitutionality of naturalization requires individual examination and assignment of the statutory requirements.»
#Prohibition of Arbitrariness and Legal Equality
BGE 138 I 305 of 12.6.2012
Admissibility of arbitrariness review in naturalization matters. Art. 14 BüG provides a sufficiently clearly defined legal position.
«Art. 14 of the Citizenship Act (BüG) serves individual interests and regulates material naturalization requirements specifically by establishing (minimum) criteria for suitability. Art. 14 BüG ultimately provides a person seeking naturalization with a sufficiently clearly defined legal position that enables them to invoke the prohibition of arbitrariness (Art. 9 BV) and the principle of legal equality (Art. 8 para. 1 BV) in the subsidiary constitutional appeal procedure.»
BGE 146 I 49 of 18.12.2019
Even without a right to naturalization, arbitrary refusal is inadmissible. If all requirements are met, refusal would be arbitrary and contrary to legal equality.
«Even without a right to naturalization, it would be arbitrary and contrary to legal equality not to naturalize an applicant who fulfills all naturalization requirements. The naturalization requirements and particularly the integration requirements must be proportionate and non-discriminatory overall and must not appear excessive.»
#Prohibition of Discrimination
BGE 139 I 169 of 13.5.2013
Discrimination in naturalization based on mental disability. Blanket exclusion of mentally disabled persons from naturalization is discriminatory.
«Excluding mentally disabled persons from naturalization due to lack of their own will corresponds neither to the legal order and proves discriminatory due to the general effect involved. It must be examined whether there is a qualified justification for this.»
#Municipal Autonomy and Integration
BGE 138 I 242 of 12.6.2012
Local integration and municipal autonomy. Club membership may not become the sole decisive integration criterion.
«Municipal citizens' assemblies have wide discretionary scope and 'certain local integration' may be required of an applicant. However, this does not justify elevating membership in clubs or other organizations to the sole decisive integration criterion, as this would misunderstand the nature of integration, which consists of gradual adaptation to Swiss customs.»
BGE 146 I 83 of 1.1.2019
Autonomy of citizen municipalities in ordinary naturalization. Cantonal presumption rules can restrict municipal autonomy.
«The federalist distribution of powers in decisions on ordinary naturalization requires careful balancing between the minimum provisions of the Confederation and the constitutionally guaranteed autonomy of citizen municipalities.»
#Naturalization Procedure
BGE 130 I 140 of 12.5.2004
Constitutional naturalization procedures. Cantonal supervisory authorities must intervene when municipalities act unconstitutionally.
«The Government Council as supervisory authority of the municipalities must recognize the need for action when Federal Court decisions on naturalization procedures have been issued. The challenged ordinance, which maintains the competence of the municipal assembly, does not appear from the outset unsuitable for enabling constitutional naturalization decisions by Schwyz municipalities.»
#Language Skills
BGE 148 I 271 of 8.3.2022
Unconstitutionality of excessive language requirements. Non-recognition of sufficient matriculation grades as language proof is unconstitutional.
«The unconstitutionality of non-recognition of sufficient matriculation grades in the local language as adequate language proof results from violation of the prohibition of excessive formalism. The requirements must be proportionate and practicable.»
#Current Developments
Judgment 1D_5/2022 of 25.10.2023
Current case law on naturalization confirms the existing principles for constitutional application of naturalization requirements.
Recent cantonal case law (Administrative Court St. Gallen B 2024/15 of 16.5.2024, Administrative Court Aargau WBE.2023.286 of 26.2.2024) concretizes the Federal Court requirements for local integration and confirms the assessment prerogative of municipal authorities in evaluating integration requirements.