Changes to the "utlänningslagen" - harder to get a permit?

Migration has always been a very important question. Ever since 2015 it is one of the most discussed topics in political Sweden. On the one hand asylum which has received harsher laws already a couple of years ago, not only when it comes to getting international protection in Sweden itself, but also the motivation to leave the country e.g. through cancelling the access to social payment, housing and basic medical care. Another topic that has been discussed for years is migration based on work. Many foreigners have received deportation orders because of minor errors as well as fraud and human trafficking were on the rise. The new changes, which will enter into force in June 2022, aim to avoid both things. Furthermore, it should also be possible to get a temporary residence permit for highly qualified people from abroad to check their chances on the Swedish labour market. In short, the changes should both attract foreign labour as well as make it harder for a certain type to take advantage of the system. In this article we attempt to summarize the most important points for all affected by those changes.

Asylum and “changing tracks” One of the most important questions shall be answered first. For asylum seekers it was possible to “change tracks” which means that you could change your application for asylum into an application for a work permit. Thus, this would mean that one of the basic rules, namely, to have applied for and received your permit before entering Sweden, would be left outside. In short, the person needs to have a negative decision which gained legal force, be employed, been in Sweden for over four months and the employment is longer than one year. An application has to be made within two weeks. The question was whether or not this should still be an option. The answer is yes, and this possibility is even more strengthened in the new legislation. Yet, the requirement for family members is now harsher, and in order to be together the applicant who is in employment must be able to take care economically for his/her family members, unless there are special circumstances. Many law firms and others have written about this topic and the conclusions differ. In general, the idea was to create an efficient system for work permits, thus somebody who already is employed and would continue to do so should not be forced to leave the country. The rule still stands, but it has in some way been easier to apply for it. According to the new 5th chapter 18 § lit.7 a foreigner can be granted a residence permit under the circumstances above. The new rule is an attempt to make it easier for those in need and to filter those who use asylum as an excuse to enter the country in order to get their work permit.

Major change: offered work vs. employment contract A real major change in this legislation is that the law now requires that the applicant has an employment contract. Residence permits will not be issued solely based on an offer. Minor errors Minor errors which lead to negative decisions and thus deportations of well-established foreign workers caught the attention of the public on a regular basis. Small insurance changes, some Swedish crowns less payment for holidays etc. have shattered and probably ruined many lives. Based on the strict rules for when a permit must be revoked, the same rules should also apply when the applicant applied for a prolonged residency, said the court and gave ground to this debate. This is now about to change. The question debated was mostly on what is to consider a minor error. That a lower wage than the collective agreement is not a minor error is self-evident for most of us. However, even a missing or wrong insurance cannot be seen as a minor error. If that is not the case the question is if it would be reasonable to expel a foreign worker from Sweden. Also, the new regulation takes a closer look on circumstances such as a global pandemic. If you could not enter Sweden within four months and start your work because of such a circumstance it would now be a valid excuse that the Migration Agency as well as the courts will have to consider in their decision making.

The question still is whether or not the employer tries to correct those errors or not, or if it is a systematic breach of legal requirements, new businesses that start up etc. Residence permit for job-search or the opportunity to start a business in Sweden This is a brand new type of residence permit that will be introduced. It is divided under two sections. The new chapter 5 §9 allows foreigners to be granted a temporary residence permit if they wish to stay in Sweden for work or starting a news business under the following circumstances: 1) have graduated from a higher education programme 2) have sufficient funds for their stay in and departure from Sweden 3) have a full health insurance during their stay in Sweden. A permit cannot be longer than 9 months. Similar rules, but more specific in § 10a for foreigners who want to start their own business and have the opportunities to do so. The background to this new permit is to give foreigners a chance to stay in Sweden after they have finished their studies at a university or other higher education systems. By this rule the Swedish government tries to keep competent workforce in Sweden and to be more attractive. However, the government strictly says that this does not mean the absolute right to such a permit even if the applicant fulfils all of the requirements mentioned above. It is still up to the Migration Agency and the courts to examine every single case. About the requirement to be able to take care of your family members During the examination of this topic the government concluded that a foreigner who applies for a work permit shall be able to take care of his family member(s) in order for them to able to get a permit themselves. The attempt is that a work permit is not used just for the sole purpose of bringing the entire family to Sweden, but the work itself. Criticised by several organisations when it comes to the rights of the child, the new law also has some exemptions. The requirements are orientated as much as possible to those stipulated in permits concerning family members when the person is already either a Swedish/EU-citizen or residing in Sweden based on a residence permit him/herself. Withdrawal of residence permits for family members The government concluded further that there are no real rules on when family members of a foreign worker can be withdrawn from their residence permits. Therefore, the following two options are introduced. The relationship between the work-permit holder and the partner has ended or the work-permit holder’s permit has been withdrawn. A possibility to withdraw a permit to be granted a new one more quickly Under the current rules it is not possible to swap from one permit to the other. The opinion is that once you have your permit you cannot get another permit on different grounds. During the examination of new rules the Swedish government has found that it should be possible for a foreigner to change grounds and be more flexible e.g. from a work permit based on an employment to your own business and came to the conclusion that the opportunity to do so already exists. However, it should also be possible to withdraw the new variant of permit for example in order to get a residence permit based on work faster. This can only be done upon request by the applicant. Travel during the process Long processes concerning the examination of an application for renewal of a residence permit are causing issues not only for the applicant him/herself but also for the employer whose staff cannot travel in during a pending application since the major rule is that you need to have a permit or a valid visa in order to enter Sweden/Schengen area, which, once the permit has run out, no longer is possible. Therefore, the option to apply for a Swedish visa in Sweden will be introduced for a fee of 60 Euros. Other rules on withdrawals besides the mentioned ones Above we have mentioned the rules on withdrawals for family members as well as change of work permit. In this section we would like to point out rules and regulations concerning withdrawal we have not spoken of yet. In short it is very simple: There are no other new rules. However, we would like to point out that the opportunity to lose a residence permit exists, if the permit has been issued on false grounds. As pointed out by the article it is not necessarily always the holder of the work permit who has done wrong, but the employer. Thus, we recommend everyone to be as active in the process as possible when applying and renewing permits to avoid any complications. Renewals and withdrawals have similar rules that apply. The employer’s tasks and duties There are two major fields for the employer to be careful about. The first one is to report any changes to employment that concern the holder of the residence permit and the residence permit the employment is based on itself. Foreign workers are more depending on their employers than Swedish workers. Thus, there is always a risk that the work environment gets worse the longer the employment lasts. In the new legislation the employer must now inform the Migration Agency in case the work environment or other points such as salary get worse. Otherwise, the employer risks sanctions. The other major field is the possibility to discover breaches in work contracts as well as work environment early.

Summary and concluding remarks This article is a very brief summary of the rules and the aim behind those rules which will be introduced in June this year. For the purpose of this article the major questions have been picked out for the people concerning and the interested to read. We do not claim that it is complete, but it should give e brief overview. We do not advise anyone to take this article as a base for private purposes. If you should find yourself in a situation described in the article, we recommend you to contact us, a lawyer of your trust or the Migration Agency itself. Every case is different and has its own nuances.

For the purpose of this article, we have left out changes in e.g. socialförsäkringsbalken as well as the changes concerning human trafficking in order to keep the length reasonable. To summarize the article we can see several significant changes in the law. The requirement of a contract instead of a simple “promise to work” being one of them. Furthermore, the requirement of being able to take care of your own family is a very important major change. One could say that the changes fulfil two goals. Firstly, the protection of the foreign worker itself, putting tougher rules on the employer. Making it easier for foreign workers to stay within the Swedish labour market and for some even easier to enter it. Secondly, it aims to prevent fraud within the Swedish system. It is not enough to have work in Sweden, one should also be able to him/herself take care of the family members.

The critique here are several points. Temporary permits in order to find work or to establish a business only attracts people with higher education and the financial means necessary to do so. It already leaves out people with low financial means but an equal degree of education. The other is the question of children an whether or not they are going to be separated from one parent who is trying to establish a life in Sweden for the whole family. The changes themselves are in many ways not fair towards certain groups of people. On the other hand we welcome that “changing tracks” has finally been part of the discussion and the problems that come with it for the persons concerned have been highlighted. That the law clearly states that under the requirements given “a work- and residence permit CAN be issued” makes it easier for many to take that option. Even though your asylum case might not be enough in the eyes of the Swedish authorities, travelling back to your home country and applying from there might not be an option. If you should have any questions concerning this article, comments etc. you are very welcome to send us an e-mail or a message on our social media accounts.

Sources:

Proposition paper 2021/22:134