New proposal intending to extend EU free movement rights to British citizens post Brexit announced

On 1st October 2019, the Swedish Ministry of Justice announced a new proposal protecting British citizens’ residence rights in Sweden should the UK crash out of the EU without a deal at the end of the month. The proposals include extending the EU principal of free movement for British citizens residing in Sweden prior to Brexit (currently 31st October) by creating new special permits (dubbed Brexit permits) effectively guaranteeing residence rights post Brexit and beyond the one-year grace period introduced by the government earlier this year.

The story so far
In March 2019, the Swedish government passed a regulation offering British citizens a temporary time-limited exemption of one year (grace period) from the work and residence permit requirement if the UK left the EU without a deal. As it stands, the exemption is only valid through to the 29th March 2020; however, it is expected to be extended by the government with the aim of ensuring a full one-year grace period from the date of Brexit. The regulation also includes the ability to obtain a passport stamp from Migrationsverket to prove right of residence during this period.

In addition to this, British citizens can already apply for long-term resident status in Sweden and include their time of residence in Sweden under the right of residence rules (see below for more information relating to long-term residence).

In a further effort to protect these rights beyond the one-year grace period, the Swedish government have announced a new proposal effectively extending the existing EU freedoms enjoyed by British citizens today, through the creation of a new special permit for those impacted by a no-deal Brexit.

New proposal background
The government estimates that there are around 20 000 British citizens living in Sweden who have exercised their right of residence under the EU principal of free movement. Despite many of these likely to also fulfil the requirements for a work and residence permit, there are those who may not, which would risk them having to leave Sweden. This coupled with the limited rights granted to holders of a work and residence permit (time limitation, stricter regulation and requirements) in comparison to the existing rights afforded under the EU right of residence, would result in UK nationals losing a lot of the rights they enjoy today.

In December 2018, the EU Commission urged member states to take a generous approach to UK citizens’ rights provided the same reciprocity was provided by the UK for EU citizens. As a result, the Swedish Government has issued a new proposal suggesting the creation of a new permit category for British citizens, affording the same conditions and rights to eligible individuals as they do today as EU citizens.

If accepted, the proposal will enter into force on 1st January 2020, allowing British citizens to apply for the special permits from this date. These permits will be based on the same requirements and regulations as that to which is afforded under the EU right of residence today to EU/EEA citizens.

What does the new proposal entail?

Who is covered?
British citizens and their family members who have exercised their right of residence or permanent right of residence in Sweden the day before the UK leaves the EU, and who continue to fulfill these conditions, will be covered by the proposal. Family members are only covered if they have accompanied or joined the British citizen before Brexit. Children will however be exempt regardless of when they join, provided it is before the one-year grace period ends. Children born after Brexit will also be covered.

British citizens who have exercised their right of residence as a family member to another EU national (other than a UK national) will not be covered under these proposals, as they will remain unaffected by Brexit.

Permanent residence permit
British citizens who have permanent right of residence in Sweden (i.e. have lived in Sweden for more than 5 years) the day before Brexit, will be granted a permanent residence permit under the new proposal. This will extend to family members, provided that they have also met the permanent right of residence.

Those, including family members, who have not reached the 5 years of residence required to qualify for a permanent residence permit at the time of Brexit, but who at the time the Migration Agency assess the case do qualify, will be granted a permanent residence permit.

Holders of a permanent residence permit are exempt from the requirement of a work permit, affording the right to work without restriction in Sweden. It will also be possible to apply for status as a long-term resident affording the holder extended rights in other EU countries.

Temporary residence permit
British citizens and their family members who at the time of Brexit have not fulfilled the permanent right of residence (resided in Sweden for less than 5 years) will be able to apply for a temporary residence permit. Temporary residence permits will be issued for a period of 5 years. The same right of residence requirements applies in line with those afforded to EU/EEA citizens today, provided that these requirements continue to be met at the time of application.

In special circumstances, family members who are no longer in a relationship with a British citizen may also be granted a temporary or permanent residence permit if they can evidence their previous relationship as a family member to an EEA-citizen (in accordance with Aliens Act Chapter 3 a, §§ 5 b – 5 d).

Holders of a temporary residence permit will also be exempt from the requirements of a work permit affording the right to work in Sweden without restriction for 5 years.

Withdrawal and visits
Just like the existing permits issued today, these can be withdrawn at any time by the authorities in accordance with the Aliens Act, Chapter 7. A permit may be withdrawn if the holder no longer fulfills the right of residence requirements for EEA citizens or family members of EEA citizens, or if they are deemed to be a threat to security and society. For example, if the holder loses his or her employment and is unable to support themselves in Sweden in any other way, they and their family members may have their permits withdrawn.

A permanent residence permit may be withdrawn if the individual is found to have been outside of Sweden for more then 2 years. The proposal however clarifies that the Migration Agency will not follow-up on this for permanent residence permit holders, but rather that they only withdraw the permit should it come to their attention that someone is no longer a resident.

British citizens will be exempted from visa requirements after Brexit permitting visa free travel to Sweden as visitors and business travelers for up to 90 days within a 180-day period, aligning to the existing rules for visa free Schengen countries.

When can you apply? 
The proposal, if passed, will come into force on 1st January 2020, which means it will be possible to apply from this date but by no later than 31st October 2020.

Note however that the transitional one-year grace period is due to end on 29th March 2020. As such, until the government has declared an extension of this grace period, an application should be made before 29th March 2020. The proposal further encourages early applications due to the risk of long processing times with the Migration Agency and to avoid any issues with social security.

Applications filed after 31st October 2020 will not be processed.

How do you apply? 
No details on how to apply nor document requirements have been released, however the Migration Agency will be responsible for processing these applications and have assured that they will be prioritizing these in the event of a no-deal Brexit.

One key important difference between these permits and the regular work and residence permits is the ability to apply from within Sweden. Individuals can remain in the country until a decision is received. There will be no application fee and the permits will be granted for longer than the passport validity date.  

What happens to British citizens who come after the UK leaves the EU without a deal?
Such individuals will not be covered by any exemptions or these regulations. Instead, they will have to comply with the regulations in place for third country nationals and apply for a residence permit. The same goes for any family members of British citizens who want to join them in Sweden after Brexit.

What happens if Brexit is delayed?
If Brexit is delayed, the proposal will likely enter be pushed forward in line with the eventual date the UK leaves the EU.

EY will continue to closely monitor the Brexit developments closely and provide further update as of when these occur.

You can find the full proposal from the Swedish government here (only available in Swedish).

Glossary

What is right of residence?
EU citizens have the right to work, study or live in Sweden without a residence permit. They also have the right to start and operate a private business. The right of EU citizens to stay in Sweden without a residence permit is called a right of residence and is enshrined in the EU treaty on the principal of free movement.

EU citizens have right of residence if they are employed, self-employed, a student or have sufficient means to support themselves.

If they fulfill the requirements for right of residence, it is automatically granted, and no application process is needed. If the individual is living in Sweden for more than one year, the right of residence would however usually be included on their extract from the Swedish population register, otherwise there is no other proof of right of residence.

The right of residence differs from residence permits, since residence permits require applications to the Migration Agency and is usually only applicable for non-EU citizens.

Right of residence is valid for as long as the individual fulfills the requirements for it. However, both the EU citizen and their family members, can under certain circumstances keep their right of residence if their circumstances changes, for example involuntary unemployment or for family members – if the EU citizen passes away or leaves the country.

If the individual has resided in Sweden for more than 5 years, the individual will automatically have permanent right of residence. This is only lost if the individual is outside of Sweden for more than 2 consecutive years. An individual who fulfills the requirements for permanent right of residence can apply for a card from the Migration Agency to prove their right in Sweden.

For further information relating to the right of residence please consult here.

What is a long-term resident?
Non-EU citizens who have lived in an EU country for at least five years with a residence permit may apply for long-term resident status in that country. Those granted long-term resident status receive a special EC/EU residence permit. This gives them certain rights, similar to those of an EU citizen, making it easier to move to another EU country to work, study, start their own business or other sufficient means of support (i.e. pension). This status is more generous than the proposed temporary and permanent residence permit for British citizens since it extends and individual’s right in other EU countries.

To be granted a long-term resident status, the individual must have lived in an EU country for at least five years either with a residence permit or with right of residence. The individual must also be able to support him- or herself and any accompanying family members. To be granted this status, the individual needs to apply for a special EU residence permit with the Migration Agency. This means that a British citizen who has been in Sweden for 4 years before Brexit with right of residence, and then is granted a temporary residence permit under the proposed new rules valid for 5 years, can apply for a status as a long-term resident when they reach the full 5 years of total residence in Sweden, despite still having 4 years of temporary residence remaining.  

For further information relating to a long-term resident status please consult here.

Sara-Stina Bergstedt and José Vaz

 

Contact
Sara-Stina Bergstedt
+46 72 181 82 76

 

Contact
José Vaz
+46 70 148 13 25