Changes to the requirements for permanent residence

In a recent legal position paper, the Swedish Migration Agency confirmed a court ruling stating that a permanent residence permit can only be granted if someone has been working in Sweden for at least three years and eight months (44 months) during the previous work permit period (out of a total of 48 months). Those who do not qualify for permanent residence but have worked in Sweden for more than 36 months (three years) may be granted a discretionary extension to qualify for permanent residence at a later date.

To qualify for permanent residence in Sweden, an individual must have held four years (48 months) of temporary work permit. To be granted permanent residence, the individual must not only have received a salary, insurances and other terms of employment in level with the applicable collective agreements, but also be in Sweden physically for a sufficient period of time to be considered having sufficient ties to the Swedish labor market. If the individual after four years (48 months) does not fulfill the permanent residence requirements, he or she would either have to leave, or request a discretionary temporary extension beyond four years. This discretionary extension can be granted for an additional maximum of two years and has previously only been granted if the individual either had to finish a project in Sweden or if the individual had been unemployed in Sweden for a brief period.

In October 2019, the Migration Court of Appeal made a ruling (MIG 2019:16) granting further possibilities to obtain a discretionary extension beyond four years. The individual in question had had four years of a work permit in Sweden but only been in Sweden for three years and seven months (43 months). This was deemed by the Migration Court of Appeal as insufficient for him to be granted permanent residence. However, the court argued that he could be granted a discretionary extension beyond four years, for the purpose of qualifying anew for permanent residence and thus compensate for the period he had been outside of Sweden. The reason behind this was that the individual already had strong ties to the Swedish labor market through his employment and that this employment had fulfilled, and would continue to fulfill, all the work permit requirements.

The Migration Agency published its legal position paper on this court ruling in June 2020. This is the formal interpretation of the court ruling by the Migration Agency and will be guiding the Agency’s future decisions until further notice. The legal position paper confirms that as a general rule, permanent residence can only be granted to someone who has worked in Sweden for at least three years and eight months during the previous work permit periods. However, if someone has worked less than that in Sweden, but more than three years, the individual can now be granted a discretionary extension beyond four years, in order to qualify for permanent residence (assuming the intention of the individual is to remain permanent in Sweden). A mandatory requirement is, however, that all other work permit requirements have been fulfilled, such as salary and insurances being in level with the applicable collective agreement. Whether someone has changed to a new employment that fulfills the requirements would not change this.

Please note that, in this assessment, the Migration Agency has considered that employment in Sweden, according to the Alien’s Act Chapter 7 Section 7 e, must begin within the first four months of the work permit’s validity period. As such, if someone is granted a work permit that is valid starting from 1 April, and doesn’t start working in Sweden until 1 August, there is as such no more time that the individual can “spare” from his or her work permit in order to qualify for permanent residence directly.

In addition, the Migration Agency reaffirms that generally no extension can be granted to someone who didn’t begin their employment in Sweden within the first four months of the work permit. For example, if the permit is valid from 1 April 2020 until 1 April 2022, and the work permit holder only starts working after 2 August, the time from 2 August 2020 until 1 April 2022 will not qualify the work permit holder for a further work and residence permit. As such, it remains of utmost importance to cancel any work permits where the employee is not able to start his or her employment in Sweden in time.

EY Recommendations

EY recommends that employees who are reaching the four-year work permit limit and who have not been in Sweden for at least 44 months, but longer than 36 months, to request a further discretionary temporary extension beyond the four-year limit. This will allow the permit holder to make up the remaining period required to qualify for permanent residence at a later date.   

If you have any queries on how this legal interpretation could apply to you or your employees, please do not hesitate to reach out a member of our team for further advice and guidance.

José Vaz, Elsa Tirén and Sara-Stina Bergstedt

You can find a short summary of this paper from the Migration Agency here, including the full court ruling and legal position paper (both in Swedish)

 

Contact
José Vaz
+46 70 148 13 25

 

Contact
Sara-Stina Bergstedt
+46 72 181 82 76

 

Contact
Elsa Tirén
+46 76 853 19 79