News
Failure to Take Vacation as Reason for Deportation
This article discusses the case widely covered in Swedish media where an individual has had their work permit application denied on the basis that the individual had not taken vacation nor been provided vacation remuneration as required under Swedish labor law. The case involves an Iraqi worker living and working in Sweden on a temporary work permit. The Swedish non-profit organization Centrum för Rättvisa (Center for Justice) is providing pro bono legal assistance to the worker to assist in appealing the deportation decision. The basis of the appeal is that the individual, in accordance with Swedish labor law, was still within the vacation qualifying year and therefore had no paid vacation to claim. According to his lawyers the only way in which the individual could have taken out the number of vacation days of which the Migration Agency demand proof would have been to take unpaid vacation. While the appeal is yet to be tried, the fact that Migrationsverket (Swedish Migration Agency) is looking at vacation leave participation as a factor in determining eligibility for work permit renewals is causing concern. In this article, we will take a closer look at the known facts of the case and its potential ramification for the Swedish case law regarding work permits.
Background
Standard Swedish work permits (e.g. not a dependent work permit) are issued conditionally on the requirement that the individual employee must verifiably receive, at a minimum, the remuneration and benefits stated in their original work permit application. The remuneration and benefits received must also conform with Swedish labor legislation. For many years the Swedish Migration Agency were noticeably lax in their compliance controls. This changed after two rulings from the Migration Court of Appeal in 2015 (MIG 2015:11 and MIG 2015:20) resulting in foreign workers being deported due to their employer’s failure to provide the promised remuneration. As a result, the Migration Agency has instead adopted a highly controversial policy of refusing to extend or renew the work permit of any foreign workers who at some point during their stay in Sweden have received less than what was stated in their work permit application(s).The Case in Question
The case in question concerns an Iraqi car mechanic, who received a Swedish work permit on the 14th of October 2014 after he had been offered work at a Swedish car reconditioning firm. On the 22nd of December 2015, the Swedish Migration Agency notified him that they were considering revoking his work permit based on two points: First, they had been informed by the Swedish Tax Authority that his salary only amounted to SEK 12,500 per month, which is below the statutory SEK 13,000 per month required for work permit holders. Second, the pay slips they had been able to requisition did not indicate that he had been accruing any paid vacation days. The Swedish Vacation Act (SFS 1977:480) requires all employers to provide a minimum of 25 vacation days per year. The Migration Agency informed him that in accordance with Section 7e of the Aliens’ Act (SFS 2005:716) he would need to apply for a new permit within 4 months if he wished to remain in Sweden.On the 1st of April 2016, the individual started working in the same capacity for a different employer, with a salary of SEK 13,500 and a reportedly compliant number of paid vacation days per year. Before starting the employment, he applied for a new Swedish work permit and on the 8th of September the Migration Agency granted him a new work permit valid until his preexisting residency permit expired on the 14th October 2016. On the 23nd of September 2016 the mechanic applied for a work permit extension, to be able to continue his new employment, but in May 2016 the Migration Agency rejected this application and instead issued a deportation decision. According to the man’s legal representation the only reason given in the deportation decision was that the applicant had not taken out the vacation he should have earned through his two employments in Sweden up until the 1st of April 2016. The Migration Agency interpreted this as proof that neither of the two employments had lived up to the Swedish minimum requirement for paid vacation, and that a work permit extension therefore could not be granted.
In their appeal of the deportation decision, the individual and his legal representation argue that since Section 7e of the Aliens’ Act allows an individual to file a new work permit application if their original employment has been found to be non-compliant it implies that the non-compliance of the first employment should not make it impossible to obtain a new work permit and having that permit extended in the future. The applicant is, for this reason, arguing that only the conditions in his present employment should affect his chances for a work permit extension. With regards to why he had not taken out any paid vacation during his present employment, the individual states that his employer provides vacation one year in arrears, calculated on a vacation year which stretches from the 1st of April until the 31st of March, which is the default way to calculate paid vacation according the Swedish Vacation Act. Since he had started his current employment on the 1st of April 2017 no paid vacation was due until after the 1st of April 2017. His legal representation is therefore arguing that the only way in which he could have taken out the vacation days the Migration Agency wanted to see proof of would have been to take out unpaid vacation, which would have defeated the purpose of a mandatory vacation requirement. Furthermore, according to section 8 of the Swedish Vacation Act no employee can be forced to take unpaid vacation, since this would diminish their income.
Our Analysis
As described above, the individual’s legal representation does not actually deny that his first employment in Sweden was in clear non-compliance with regards to the salary and vacation offered. According to the Migration Agency’s current interpretation of the applicable case law such a non-compliance would in itself be sufficient reason to deny an individual a work permit extension. The Migration Agency’s decision has in this regard become progressively harsher since the beginning of 2016 and in the last year has seen numerous documented cases were the Agency has denied work permit extensions due to non-compliances three or four years into the past, even when the applicant has received several work permit extensions and kept compliant during the years in-between. The focus on vacation leave which has brought the case to public attention does seem to be more a matter of how the deportation decision was worded than a real shift in migration case law, but the fact that the Migration Agency is reviewing the actual vacation use of foreign workers is worth noting.By Swedish law all employees in the country, including posted workers, must be given a minimum of 25 days paid vacation per year and a vacation premium of at least 0.43% of the monthly salary per vacation day (this requirement can be higher where there is a collective agreement). The vacation days are accrued through work and intended to be used as actual leave, though an individual can choose to save the portion of their vacation days that exceed 20 for up to 5 years. Failure to provide paid vacation, or attempts to replace the concept of earned vacation with extra cash payments in any employment intended to last longer than 3 months, is a labor law violation which in work permit cases also can cause the deportation of the individual employee. In cases where an individual employment comes to an end, any earned vacation – even if employment is ended during the qualifying year – must be paid out by the employer. Keeping compliant with the Swedish labor legislation is therefore of significant importance for all parties.
The harsh interpretation of the Swedish migration legislation over the past year has led to several legislative initiatives including discussions on the possibility for employers to compensate foreign workers for non-compliant remuneration packages in a manner which allows the employees to qualify for work permit extensions. Any new legislation is currently not expected to take effect prior to December 2017. This legislative change may not necessarily affect cases where no such compensation and or benefits, for one reason or another, have been received and exercised by an individual. Only time will tell how the Swedish case law in this area will continue to develop.