The calculation of the total accumulative temporary work permit period

In a new legal position, the Swedish Migration Agency has revised its interpretation on the calculation of the total permit period for work permits. This new interpretation states that all work permit periods over the past seven years must be considered in any new work permit application. The Swedish Migration Agency also clarifies when a fresh new seven-year period can be considered.

In Sweden, a temporary work permit can only be issued up to an accumulative period of four years. In exceptional circumstances, this temporary period can be extended for a further two years up to a maximum accumulative period of six years in total.

To qualify for permanent residence, an individual must have held a temporary work and residence permit for four years, which can include previous permit periods within a seven-year span from the time of application. However, to be granted permanent residence, in addition to having accumulated four years of a temporary work and residence permit, all other conditions for the temporary work permit – such as received salary and insurances – must have been fulfilled. In the event that an individual cannot obtain a permanent residence permit, and wishes to apply for a new work permit, they will need to wait until the four years fall outside of the seven-year period.

If an individual has held a work and residence permit for four years, the Swedish Migration Agency will assess whether they qualify for permanent residence. Should the individual not qualify, the Migration Agency will assess whether a discretionary extension beyond the four years can be granted. The criteria for this have been somewhat inconsistent over the years, which makes it difficult to advice whether someone can be granted a discretionary extension, as it is purely based on an individual’s circumstances.

Should the discretionary extension not be possible, an additional time-limited work permit cannot be granted until the four-year period within the seven-year span has elapsed. This is generally calculated from the time of the decision, whereby the individual has no longer held a work permit for four years in the last seven.

In the legal position paper, the Swedish Migration Agency clarifies that the four-year calculation only includes permits that have been “used”. An individual is defined as using a permit when they have traveled into Sweden during the period of validity of the permit. If they have not travelled to Sweden at all, the permit period will be omitted from the four-year calculation. However, the entire permit period time will be used for the four-year calculation if at any point the individual entered Sweden during the permit validity, even if it was for a short period of time.

In calculating the four-year period for permanent residence, the individual will not be required to have held four-years of continuous permits. Instead this can be spread over a seven-year period and added together to form the basis for a permanent residence permit.

In our previous article, EY drew attention to a legal position that concerned the interpretation of the same judgement (MIG 2019:16) that is being interpreted in the new, recently published legal position. The new legal position replaces the previous one, however, the Swedish Migration Agency does not believe that the interpretation of case law has changed. Instead, the new legal position is the result of a general update in a series of legal positions.

Based on the new legal position, we have compiled a few items below that may be relevant when assessing a person’s work permit history:

  • A person who has been granted a work permit during the years 2015–2017 and 2019–2021 (for example) may be eligible to have their application examined for a permanent residence permit during the next extension application.
  • In the event that an individual has held a residence permit due to work for four years and then moved from Sweden, but is applying for a new work permit in Sweden during a seven-year period from the first permit was granted, they would be assessed for permanent residence. If the individual has not worked to the extent required, or otherwise has not met the conditions for a work permit, their application may be examined for a work permit for more than four years due to special reasons and thus be eligible for a permanent residence permit at a later stage.
  • However, if such a period has passed, that the individual at the time of the decision no longer has had a work permit for four years during the last seven-years, the person may be granted a work permit for two years without the need for special circumstances. This is what is usually called the “cooling-off period” and is the point for when a person, who has not previously met the requirements for permanent residence permit, may apply for a new work permit.

If you have employees who are approaching the four-year limit for work permits or if you are in the process of recruiting someone who has previously had a work permit history in Sweden, it may be wise to assess their work permit history before an application is submitted. This will help to determine whether the individual is eligible for permanent residence or whether they will need to wait until they can apply for a new temporary permit.

For further information please contact a member of the EY Sweden immigration team, or your regular EY contact, for advice and guidance.

José Vaz, Elsa Tirén and Josef Gyrmai

The legal position of the Swedish Migration Agency is available in Swedish here (RS/011/2021)

A Swedish version of this article is available here: Beräkning av sammanlagd tillståndstid för arbetstillstånd

 

Contact
José Vaz
+46 70 148 13 25

 

Contact
Elsa Tirén
+46 76 853 19 79

 

Contact
Josef Gyrmai
+46 70 845 97 63