Residence permits for commuters

The Migration Court of Appeal rules that third country national commuters working in Sweden should be granted a work and residence permit extension despite not residing in Sweden.

On the 3rd September 2020, in a landmark ruling, the Migration Court of Appeal ruled that the Migration Agency cannot refuse an application for a residence permit based on employment in Sweden just because the applicant was residing outside the country.

In the ruling (reference number MIG 2020:17) the applicant was issued a work and residence permit between 2016 and 2018 based on employment in Sweden. As the applicant was residing in Denmark and commuting daily to Sweden for work, the Migration Agency rejected the extension application in 2018 on the grounds that the applicant would not be residing in Sweden and therefore the criteria for receiving a residence permit was not met. 

The decision was appealed to the Migration Court but refused in July 2019 stating that the definition of residency in the Aliens Act should be aligned with the regulation on the population registry where it is interpreted in terms of long-term residency in a permanent accommodation.

The case was subsequently appealed further to the Migration Court of Appeals arguing that the requirement to spend more than the standard working hours in Sweden would lead to the introduction of a new requirement that is not supported in the current legislation.

The Migration Court of Appeals did not consider there to be a requirement for the applicant to want to settle permanently in Sweden in order to be issued a residence permit based on employment in Sweden. In addition, the court does not consider there to be a requirement for the applicant to have their daily rest in Sweden for the condition of residing in Sweden to be met.

As a result of this decision, the Migration Court of Appeals has repealed the ruling of the Migration Court and the decision of the Migration Agency whilst ordering the Migration Agency to process the application anew, taking into consideration that no daily rest or intention to settle permanently in Sweden is required for the residence permit to be approved.

This is a milestone win for commuter workers who in the past may have had their work and residence permit extension rejected on the grounds of having not satisfied the residence requirement for a residence permit in Sweden.

More information regarding the ruling can be found here.

If you have any questions on how this ruling could be applied to your employees or if you have any upcoming extension applications for your commuter/frontier workers, then please do not hesitate to reach out to a member of our EY Global Immigration team.

Andreas Bråthe, José Vaz and Elsa Tirén

 

Contact
Andreas Bråthe
+46 73 397 24 33

 

Contact
José Vaz
+46 70 148 13 25

 

Contact
Elsa Tirén
+46 76 853 19 79