Decentralise the Procedure but not the Law? Cautionary Lessons from Switzerland’s Multilevel Citizenship
Barbara von Ruette (Max Planck Institute for the Study of Religious and Ethnic Diversity, Göttingen)
Switzerland is the textbook example of a decentralised nationality regime. Swiss citizenship has three levels – every citizen is a citizen not only of the national, federal state, but also of a canton and a municipality. The three levels are inherently tied, and citizenship can be acquired and lost only on all levels together. The three-level citizenship structure is reflected in the naturalisation system: both the substantive criteria for naturalisation as well as the procedures are decentralised.
Switzerland’s multilevel citizenship, hence, provides an excellent example to discuss possible implications and pitfalls of Bronwen Manby’s proposal to decentralise naturalisation. While I agree that effective access to citizenship is critical, I argue on the basis of the Swiss case that decentralisation of naturalisation procedures does not improve access to citizenship but remains highly discretionary and exclusionary, even in combination with transparent and universal naturalisation conditions.
As described by Irene Bloemraad for the United States, the Swiss model of citizenship too has historical reasons. The first constitution of the modern federal state of 1848 did not foresee an independent federal citizenship. Swiss citizenship was granted simply by virtue of being a citizen of one of the cantons. Only in 1874 was the federal state granted the competence to regulate automatic acquisition at birth and loss of citizenship as well as through facilitated naturalisation based on marriage or descent. Ordinary naturalisation, by contrast, remains a shared competence of cantons and the federal state.
Today, the Federal Act on Swiss Citizenship establishes minimum requirements for acquisition of citizenship by way of ordinary naturalisation. A revision of the Citizenship Act in 2014 aimed at facilitating the complex three-level naturalisation procedure and at harmonising the naturalisation criteria. This aim was only partially achieved. The cantons still have extensive competences to set their own criteria for naturalisation, especially with regard to the substantive requirements, and go both beyond as well as below the requirements set at federal level when fleshing these out. The cantons can even grant further competencies to the municipalities to set their own requirements for acquisition of municipal citizenship. With 26 cantons and 2255 municipalities this results in an extremely complex puzzle of naturalisation requirements and procedures.
The patchwork of naturalisation criteria in the federal state creates a situation where the criteria and the possibilities for naturalisations vary significantly from one canton, or even from one municipality to the other. In some cantons applicants must have resided five years in the canton, in parallel to the residency requirement of ten years required at federal level, while in other cantons the cantonal residency requirement is only two years. In most cantons applicants must not only speak one of the national languages, but the local official language, and sometimes at a higher level than required by federal law. And a number of cantons require that applicants have not been dependent on social welfare for a period of ten years, whereas the same requirement at federal level is limited to three years. The requirement of local integration can result in ridiculous cases, such as the one cited by Manby, where a women was denied citizenship because her activism against cowbells was found to be in contradiction to the local heritage and hence a sign of insufficient integration.
But not only the criteria for naturalisation are decentralised. So is the procedure. Every canton, every municipality, has a different system for naturalisation. Sometimes, an application first has to be lodged with the municipality, sometimes the canton is responsible for the first examination of an application. In some places, namely in bigger cities, a specialised commission or office within the administration is responsible for processing an application. In smaller villages the local executive organ, mostly the municipal council consisting of citizen-politicians and layperson, decides. In yet other places naturalisation applications are still decided by popular vote in the municipal assembly. Even ballot box votes on naturalisations were possible until the Federal Supreme Court prohibited it in 2003 due to the inherent risk of discrimination.
Even in the procedure for facilitated naturalisation, in case of marriage or for children of naturalised persons, stateless children, and third-generation-residents, where the requirements are determined exclusively by federal law, the cantonal authorities retain an important role and wide discretion in establishing the facts and in assessing the requirements. As a result, arbitrary decisions and discrimination remain a problem also in facilitated naturalisations.
For migrants wanting to naturalise in Switzerland this patchwork of regulations and procedures results in an extremely complex and frustrating situation. It is difficult for non-lawyers to figure out the respective criteria applicable in one place; the chances of naturalisation are very different from one place to the other, resulting in inequities which are difficult to justify; and moving from one place to the other, even only five kilometres across the cantonal or municipal border, can mean that new criteria and a new residence period have to be fulfilled before naturalisation becomes again possible.
As a result, the naturalisation rates vary significantly from one canton to the other. At the same time, the cantonal and communal authorities have an enormous amount of discretion when deciding on naturalisation applications. Especially in smaller villages citizenship is granted based on perceptions of deservingness rather than objective criteria and is prone to discrimination. The vagueness of the naturalisation requirements aggravates this risk of excessive discretion. As observed by Bloemraad for the US, the groups affected most by the local disparities are those who are already most at risk of exclusion based on ethnic origin, race, religion, or social status.
Similar to the South American context described by Diego Acosta, liberal and progressive forces in Swiss politics and academia have long tried to unblock access to citizenship by advocating centralisation. The facilitated naturalisation of third-generation-residents, initiated by a parliamentarian and adopted by popular vote in 2017, for example, aimed at easing acquisition of citizenship primarily by shifting the competence for this facilitated naturalisation to the federal state and thereby creating a single procedure with unified requirements. In parallel, the Federal Supreme Court has always played a crucial role in preventing discriminatory naturalisation decisions, in limiting the competences of cantonal and municipal authorities, and in mitigating the consequences of discretionary naturalisation procedures. By contrast, in the absence of an effective right to nationality in international treaties ratified by Switzerland, international courts and tribunals have so far not set any limits to the restrictive nationality regime in Switzerland. The Committee on the Elimination of All Forms of Racial Discrimination, for example, found that the argument of insufficient integration was enough to justify a local decision not to naturalise a young migrant with a disability who has spent most of his life in Switzerland (Benon Pjetri v. Switzerland).
Manby argues that decentralised naturalisation procedures could also contribute to preventing and reducing statelessness. There is no evidence that would support such an effect in the case of Switzerland. The possibility of facilitated naturalisation exists only for minor children recognised as stateless. Adults, in principle, have to apply for ordinary naturalisation and, hence, have to go through the threefold naturalisation procedure. The statelessness determination procedure (SDP) in Switzerland is governed by the general administrative procedure and not formalised in law. Other than the naturalisation procedure, the SDP is highly centralised. Institutionally, it is located with the asylum sections of the Federal State Secretariat for Migration and not the sections in charge for nationality matters. The clear distinction between the decentralised naturalisation and the centralised statelessness determination procedures ultimately has the effect that naturalisation authorities, especially those at the municipal and cantonal level, have no knowledge about statelessness and the protection required for stateless persons. It results in a complete separation of the question of recognition of statelessness from access to citizenship.
By and large, the Swiss system of decentralised naturalisations does not render access to citizenship more effective and naturalisation procedures more fair. Quite to the contrary. Overall, Switzerland has a naturalisation rate of roughly 2% of the foreign resident population. Combined with a strict ius sanguinis-system, where not even third-generation-residents have automatic access to nationality, this results in a very restrictive citizenship regime for populations of immigrant origin. The disparate naturalisation requirements in law are only partly responsible for this situation. It is just as much the decentralised naturalisation procedures and the discretion of local authorities which make naturalisations in Switzerland complex and arbitrary. Hence, at least in the Swiss context, decentralising naturalisation has not lead to a well-protected right to nationality.
What can the example of Switzerland offer to the global South? The Swiss case shows that decentralising naturalisation procedures has the advantage of increasing awareness of the possibility of naturalisation and creating a feeling of ownership for citizenship at the local level. This effect could be particularly important in highly centralised states. In order to raise trust in naturalisation procedures and to actually make access to citizenship more effective and equitable, however, the naturalisation requirements, the procedures and the competencies of local authorities would have to be narrowly circumscribed in order to prevent arbitrary or abusive decisions, especially when administrative capacities are already weak. Otherwise, decentralising naturalisation risks reinforcing citizenship as a privilege rather than making the right to change nationality a reality.