Can I register my sans-papiers domestic helper for the Swiss social security system?

Sans-papiers (undocumented migrants) are people who are residing illegally in Switzerland according to the law.  This means that they do not have a regular residence status. Four out of five sans-papiers work, more than half of them in private households: as cleaners, elderly care or au pairs. quitt provides answers to important questions about sans-papiers.

Why do private households hire sans-papiers?

A study by the University of Applied Sciences Northwestern Switzerland has investigated why families hire sans-papiers as domestic workers. For this purpose, annual telephone interviews were conducted with a random sample. Most families justify their recruitment on the grounds of a better work-life balance. In addition, an external help avoids discussions in the partnership.

The study has found that families are not picky when hiring a private domestic worker. It is mainly the circle of acquaintances who is asked for recommendations. For specifically hiring illegal migrants the study could not find any motives, such as low wage costs, high flexibility or helping immigrants. Rather, the study found that the employers usually “get into the employment of an sans-papiers domestic worker completely unprepared”.

Sans-Papiers convince with high work ethic

With a high work ethic and the desire for a long-term commitment, many sans-papiers do a good job. After the employer learns about the irregular residence status of the household help, they want them to stay. Then the moral pressure to act according to the law is less strong than the wish to keep the sans-papiers employed.

Table 1 from the final report “Sans Papers in Switzerland 2015” by the Université de Genève, Swiss Forum for Migration and Population Studies and B,S,S. commissioned by the SEM:

■ Private household 53%  ■ Construction industry 18%  ■ Host 16%  ■ Other 8%  ■ Agriculture 5%

Can the social contributions, like the «AHV», be accounted for sans-papiers?

Yes, working illegal migrants can be insured and pay social security contributions.

Many employers consciously or unconsciously hire sans-papiers. Some of these employers also register their employee with the relevant social insurance institution. This registration (attention: registration is not equal to employment, see next title) is basically without risk for the person staying illegally in Switzerland. Due to data protection laws, neither the Social Security Office, nor the insurance and tax authorities are allowed to hand out any data to the Migration Office. Also, if an employer hires an illegal migrant via quitt, this entails no risk for the employee.

Sans-Papiers can draw AHV pensions

By registering for social security deductions, the sans-papiers has left open the possibility that if her residence status is legalized, she will also receive an AHV pension in Switzerland when she retires. The same applies, for example, if a person later resides legally in a country with which Switzerland has concluded a bilateral or multilateral social security agreement. The money paid in is therefore not lost.

High costs loom without mandatory accident insurance

Because illegal migrants usually work without paying social security contributions, they are often not entitled to social security benefits in an old age. They are exposed to the risk of being paid dumping wages. In addition, without accident insurance they bear another major risk. If an accident has happened, there is a high probability that they will be left with medical expenses, which will make it even more impossible for them to have a regular future.

Table 2 from the final report “Sans Papers in Switzerland 2015” by the Université de Genève, Swiss Forum for Migration and Population Studies and B,S,S. commissioned by the SEM:

■ Latin Switzerland 49%  ■ Urban cantons 27%  ■ German-speaking Switzerland 19%  ■ Tourism cantons 5%

Is it legal to employ sans-papiers in private households?

No, the employment of persons without a residence permit with work permit is punishable by law. Anyone who employs sans-papiers may be liable to prosecution under article 116, paragraph 1a of the Federal Act on Foreign Nationals and Integration:

Art. 116 Encouraging unlawful entry, exit or unlawful period of stay. Any Person who:

a. in Switzerland or abroad, facilitates the unlawful entry or departure or the unlawful period of stay in Switzerland of a foreign national or assists a foreign national to prepare for the same;

[…]

b. finds foreign nationals employment in Switzerland without the required permit;

So, one can illegally pay social security?

Whoever employs sans-papiers in the household and does not register the employment correctly is liable to prosecution. Comparable to a person who drives a car without buckling up while being drunk. Anyone who employs sans-papiers in the household and settles the employment correctly, does not make himself liable to prosecution because of the unregistered employment, but the employment itself remains illegal, for which the employer is still liable to prosecution. Comparable to a person who drives a car with his seatbelt fastened while being drunk.

Current political developments: Waiting for the report of the Federal Council

The currently difficult situation of illegal migrants could change with the upcoming report of the Federal Council. The report is intended to be an holistic view (including possible tightening of the law) of the problem of sans-papiers. The focus is on social security law and the law on foreigners with the so-called “hardship cases”. In the case of a hardship application, it is decided whether the status of an illegal migrant is to be legalized. The Asylum Act and the Federal Act on Foreign Nationals and Integration contain provisions on how these cases are to be assessed. However, the criteria set out in the law for assessing hardship cases are interpreted differently from case to case. The cantonal authorities have a wide margin of discretion. If the canton is prepared to grant a hardship permit, the State Secretariat for Migration (SEM) must give its final approval to each case. Then the sans-papiers receives a residence permit for Switzerland. The Federal Council’s report should also take into account findings from the Geneva “Papyrus” project. In the Papyrus project, the status of over 1’800 sans-papiers who did not have valid residence papers but are well integrated and have been living in the canton of Geneva for many years have been legalized. There were only four applications for hardship cases that were not approved.

List of sources

Fachhochschule Nordwestschweiz: Expert report “Assessment of the consequences of the implementation of the skilled worker initiative on the paid low wage sector in private households, especially for low-skilled migrants and sans-papiers”. https://sans-papiers- basel.ch/app/uploads/2018/12/Gutachten_Fachkr%C3%A4fteinitiative_Sans-Papiers.pdf

SEM, State Secretariat for Migration: Report “Sans Papers in Switzerland 2015“ https://www.sem.admin.ch/dam/data/sem/internationales/illegale- migration/sans_papiers/ber-sanspapiers-2015-d.pdf

NZZ: Article “Geneva has legalized the status of over 1800 sans-papiers“ https://www.nzz.ch/schweiz/genf-hat-den-status-von-ueber-1800-sans-papiers-legalisiert- ld.1464609

The Federal Assembly, The Swiss Parliament: Interpellation “Sans Papers with AHV Identity Card” https://www.parlament.ch/de/ratsbetrieb/suche-curia- vista/geschaeft?AffairId=20103615

The Federal Assembly, The Swiss Parliament: Postulate “Overall examination of the problem of sans-papers” https://www.parlament.ch/de/ratsbetrieb/suche-curia- vista/geschaeft?AffairId=20183381

The Federal Assembly, The Swiss Parliament: Motion “For coherent legislation on sans-papiers. Including answer of the Federal Council” https://www.parlament.ch/de/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20183005

Organisations working for illegal migrants

Association contact point for sans-papers: The platform on the sans-papers was founded in 2002 with the aim of achieving regularizations for the sans-papiers or at least improving the hardship regulation. http://www.sans-papiers.ch

National Platform for Health Care for Sans-papers: The National Platform for Health Care for Sans-papiers was founded in 2006, initiated by the Federal Office of Public Health. http://www.sante-sans-papiers.ch

Swiss Red Cross: The Swiss Red Cross offers Sans Papers an outpatient clinic for basic medical care. https://www.redcross.ch/de/soziale-integration/sans-papiers

UNIA trade union: defends the rights of sans-papers. This applies to the areas of health care, social insurance and schools. https://www.unia.ch/de/arbeitswelt/von-a- z/migrantinnen/sans-papiers, https://www.unia.ch/uploads/media/Sans_Papiers_Brosch_A7_dt_03.pdf

Union Syndicat SIT: Defends the rights of sans-papiers and is in favour of a collective regularisation of sans-papiers. http://www.sit-syndicat.ch/