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Positive Shifts in the Work Permit Case Law
During the same period, shifts in the Swedish immigration case law created further complications, which in the last two years have affected many of the most highly qualified guest workers. After a legislative change introduced on December 1st, 2017, followed by two important legal precedents from the Swedish Migration Court of Appeal (see below), this development has partially been reversed.
Legal background
According Chapter 6, Section 2 of the Aliens Act (Swe. Utlänningslagen, SFS 2005:716), a guest worker is only to be granted a Swedish work permit if the salary, insurance package and other employment terms they have been offered are at least as good as the minimum terms prescribed by either relevant collective agreements or by other industry standards acceptable to the Migration Agency . According to the same Act, work permits can be withdrawn and renewals refused if it the employer fails to live up to the terms stated in the application.As we have reported in previous articles, the Swedish Migration Agency has, following two relatively ambiguous legal precedents from 2015, applied a very strict interpretation of the above-mentioned law. According to this interpretation, the remuneration, pension contribution and insurance coverage levels for an employee could not in any way or at any given time fall short of the terms stated in the work permit application, or those prescribed by labor union standards (including annual raises), without disqualifying the individual employee from receiving a Swedish work permit in the future. This controversial legal interpretation gained notoriety by threatening many highly paid professionals with deportation for minor errors committed by their employers and even errors and omissions committed by past employers several years into the past. These problems were exacerbated by the Migration Agency’s standpoint that this type of non-compliances was to be regarded as irreparable. This meant that even temporary shortfalls in remuneration, benefits or insurance coverage could make it impossible for an individual employee to get their work permit renewed even if their employer later compensated them for the inadequacies.
The problems caused by the sudden shift in the practical application of the Swedish immigration legislation created great concern within the general public and on December 1st, 2017 the Swedish parliament changed the law to remedy this problem. According to the new legislation, a past non-compliance with regards to remuneration or benefits does not have to bar the individual employee from a new (or continued) permit as long as the non-compliance has been amended before the Migration Agency has taken action (notably before an application to renew a work permit has been submitted and the Migration Agency becoming aware of any noncompliance or deficiency). The legal untenability of the Migration Agency’s previous position was further underlined by two precedential verdicts regarding work permit applications denied long before the new legislation was introduced, which were made by the Swedish Migration Court of Appeal during December 2017.
The Recent Case Law
In the first of two legal cases we discuss, MIG 2017:25, an Iraqi pizza baker appealed the Migration Agency’s decision to refuse him a work permit extension. The Migration Agency motivated their decision with the fact that the individual’s monthly gross salary had been SEK 460 lower than the minimum salary enforced by the relevant labor union. This discrepancy was created by the union raising their minimum salary after the issuance of the plaintiff's work permit, and when the plaintiff’s employer finally realized that this had taken place, the employer immediately paid the employee the difference between the previous salary and the new union minimum. Despite this latter compensation, the Migration Agency was of the opinion that the terms of the work permit had been violated. The Migration Court of Appeal ruled that though a work permit, to preserve the legitimacy of the Swedish system, may be canceled and extensions denied in cases where the applicable terms have not been fulfilled during the immediately preceding permit period, such determinations must factor in all relevant factors and the overall effect of the non-compliance. Since the plaintiff, in this case, had been fully compensated for the salary short-fall, the court found that his previous permit period as a whole had been compliant and that he should, therefore, be granted the work permit extension he had applied for.The Migration Court of Appeal found that the adequacy of the remuneration package could not reasonably be tried on a month-by-month basis since the concept of retroactively received compensations is well-established in many of the unionized workplaces which, according to the law, are to serve as a comparison. It is, therefore, necessary to review the individual’s Swedish employment as a whole.
The court found that the programmer’s earnings had been higher than required and that his employer had discovered and corrected the pension and insurance non-compliance relatively early. Since the missing pension payments had furthermore been paid in retroactively, the court saw no reason to deny the individual the permanent residency permit he had applied for.
Current Legal Situation
Since the legislative change on December 1st, 2017, the Migration Agency has been quick to reveres many of their harshest policies and in the light of the two legal precedents described, their previous stance mainly appears to be a misinterpretation of previous rulings on their part.The policy shift does not, however, mean that any level of non-compliance is accepted in extension cases. Noncompliance with regards to salary and pension should be compensated as soon as possible, though there is currently a governmental committee looking into the possibility of allowing extensions even in cases where there are smaller uncompensated discrepancies. With regards to individuals who have at some point been missing a mandatory insurance coverage, the Migration Agency has in the last two months been showing a greater level of leniency, at least as long as the insurances were put in place at a later date. At this point in time, it is hard to predict how far that policy extends, but we have ourselves lately been able to assist several individuals with preexisting insurance noncompliance who would not have been able to receive a work permit extension just a few months ago prior to the recent legislative changes and legal rulings.
Another uncertain aspect is how longer unpaid leaves-of-absence will be treated, for example, in cases where an employee has left Sweden for a few months to take care of pressing family affairs. Since such periods bring down the average individual earning during their Swedish assignment, there have been cases during the last few years where guest workers have been refused work permit renewals due to taking such leave. The Migration Agency’s current stance is that an individual should cancel their work permit voluntarily if they go on an extended unpaid leave of absence. Failure to do so can potentially be held against the individual in case of future extension applications. All determinations are, however, to be made on a case-by-case basis and individual Migration Agency decision makers are free to make their own determination regarding what is reasonable within the guidelines of the authority.
Currently, somewhat greater leeway is given regarding old noncompliance issues when an individual is applying for a new work permit for the purpose of changing employer since the new employer would not usually have any involvement in previous noncompliance. According to the Migration Agency decision makers we have spoken with, the authority has furthermore introduced a new policy stating that individuals who have not held Swedish work permit or residency during the last six months should not be required to prove their compliance during previous work assignments in Sweden.
In recent years the Swedish migration system has experienced many changes. The Migration Agency processing times are, since the summer of 2017, more or less back to normal after the long period of upheavals which followed the refugee crisis of 2015.
During the same period, shifts in the Swedish immigration case law created further complications, which in the last two years have affected many of the most highly qualified guest workers. After a legislative change introduced on December 1st, 2017, followed by two important legal precedents from the Swedish Migration Court of Appeal (see below), this development has partially been reversed.
Legal background
According Chapter 6, Section 2 of the Aliens Act (Swe. Utlänningslagen, SFS 2005:716), a guest worker is only to be granted a Swedish work permit if the salary, insurance package and other employment terms they have been offered are at least as good as the minimum terms prescribed by either relevant collective agreements or by other industry standards acceptable to the Migration Agency. According to the same Act, work permits can be withdrawn and renewals refused if it the employer fails to live up to the terms stated in the application.
As we have reported in previous articles, the Swedish Migration Agency has, following two relatively ambiguous legal precedents from 2015, applied a very strict interpretation of the above-mentioned law. According to this interpretation, the remuneration, pension contribution and insurance coverage levels for an employee could not in any way or at any given time fall short of the terms stated in the work permit application, or those prescribed by labor union standards (including annual raises), without disqualifying the individual employee from receiving a Swedish work permit in the future. This controversial legal interpretation gained notoriety by threatening many highly paid professionals with deportation for minor errors committed by their employers and even errors and omissions committed by past employers several years into the past. These problems were exacerbated by the Migration Agency’s standpoint that this type of non-compliances was to be regarded as irreparable. This meant that even temporary shortfalls in remuneration, benefits or insurance coverage could make it impossible for an individual employee to get their work permit renewed even if their employer later compensated them for the inadequacies.
The problems caused by the sudden shift in the practical application of the Swedish immigration legislation created great concern within the general public and on December 1st, 2017 the Swedish parliament changed the law to remedy this problem. According to the new legislation, a past non-compliance with regards to remuneration or benefits does not have to bar the individual employee from a new (or continued) permit as long as the non-compliance has been amended before the Migration Agency has taken action (notably before an application to renew a work permit has been submitted and the Migration Agency becoming aware of any noncompliance or deficiency). The legal untenability of the Migration Agency’s previous position was further underlined by two precedential verdicts regarding work permit applications denied long before the new legislation was introduced, which were made by the Swedish Migration Court of Appeal during December 2017.
The Recent Case Law
In the first of two legal cases we discuss, MIG 2017:25, an Iraqi pizza baker appealed the Migration Agency’s decision to refuse him a work permit extension. The Migration Agency motivated their decision with the fact that the individual’s monthly gross salary had been SEK 460 lower than the minimum salary enforced by the relevant labor union. This discrepancy was created by the union raising their minimum salary after the issuance of the plaintiff's work permit, and when the plaintiff’s employer finally realized that this had taken place, the employer immediately paid the employee the difference between the previous salary and the new union minimum. Despite this latter compensation, the Migration Agency was of the opinion that the terms of the work permit had been violated. The Migration Court of Appeal ruled that though a work permit, to preserve the legitimacy of the Swedish system, may be canceled and extensions denied in cases where the applicable terms have not been fulfilled during the immediately preceding permit period, such determinations must factor in all relevant factors and the overall effect of the non-compliance. Since the plaintiff, in this case, had been fully compensated for the salary short-fall, the court found that his previous permit period as a whole had been compliant and that he should, therefore, be granted the work permit extension he had applied for.
In the second legal case, MIG 2017:24, a computer programmer appealed the Migration Agency´s decision to deny him a permanent residency permit after having held two subsequent Swedish work permits with a combined duration of four years. The programmer had lacked the prescribed pension and health insurance during his first 18 months in Sweden. His employer had later realized this mistake, signed up for the correct insurance and paid all the proper pension premiums retroactively well before the permanent residency permit was applied for. However, according to the Migration Agency interpretation, this later compensation was of no consequence based on two determinations: First, the employer's later actions did not change the fact that the remuneration package had at one point been non-compliant. Second, retroactive compensation cannot extend the health insurance coverage to the time before its start date, in other words, the employee worked for a period without insurance and thus would not have been eligible for coverage had there been a need for the insurance benefit.
The Migration Court of Appeal found that the adequacy of the remuneration package could not reasonably be tried on a month-by-month basis since the concept of retroactively received compensations is well-established in many of the unionized workplaces which, according to the law, are to serve as a comparison. It is, therefore, necessary to review the individual’s Swedish employment as a whole.
The court found that the programmer’s earnings had been higher than required and that his employer had discovered and corrected the pension and insurance non-compliance relatively early. Since the missing pension payments had furthermore been paid in retroactively, the court saw no reason to deny the individual the permanent residency permit he had applied for.
Since the legislative change on December 1st, 2017, the Migration Agency has been quick to reveres many of their harshest policies and in the light of the two legal precedents described, their previous stance mainly appears to be a misinterpretation of previous rulings on their part.
The policy shift does not, however, mean that any level of non-compliance is accepted in extension cases. Noncompliance with regards to salary and pension should be compensated as soon as possible, though there is currently a governmental committee looking into the possibility of allowing extensions even in cases where there are smaller uncompensated discrepancies. With regards to individuals who have at some point been missing a mandatory insurance coverage, the Migration Agency has in the last two months been showing a greater level of leniency, at least as long as the insurances were put in place at a later date. At this point in time, it is hard to predict how far that policy extends, but we have ourselves lately been able to assist several individuals with preexisting insurance noncompliance who would not have been able to receive a work permit extension just a few months ago prior to the recent legislative changes and legal rulings.
Another uncertain aspect is how longer unpaid leaves-of-absence will be treated, for example, in cases where an employee has left Sweden for a few months to take care of pressing family affairs. Since such periods bring down the average individual earning during their Swedish assignment, there have been cases during the last few years where guest workers have been refused work permit renewals due to taking such leave. The Migration Agency’s current stance is that an individual should cancel their work permit voluntarily if they go on an extended unpaid leave of absence. Failure to do so can potentially be held against the individual in case of future extension applications. All determinations are, however, to be made on a case-by-case basis and individual Migration Agency decision makers are free to make their own determination regarding what is reasonable within the guidelines of the authority.
Currently, somewhat greater leeway is given regarding old noncompliance issues when an individual is applying for a new work permit for the purpose of changing employer since the new employer would not usually have any involvement in previous noncompliance. According to the Migration Agency decision makers we have spoken with, the authority has furthermore introduced a new policy stating that individuals who have not held Swedish work permit or residency during the last six months should not be required to prove their compliance during previous work assignments in Sweden.