Reduced employment duration requirement for permanent residence permits in Sweden

Overview

On December 13, 2023, the Swedish Migration Court of Appeal published a new judgement, MIG 2023:18, wherein the Court found that the requirement that an income must have a ‘certain duration’ in applications for permanent residence permits should be interpreted in line with applications for temporary residence permits based on family reunification. In practice, this means that when applying for permanent residency, an applicant’s income may be considered to have a certain duration if they are employed for at least a year more. The application may also be approved, even if the employment lasts shorter than a year, if an overall assessment based on the applicant’s previous employment history shows that it is probable that the employment will be renewed and therefore last longer than a year. 

The Migration Agency had previously required that an employment must last for at least 18 months from the decision date for it to have a certain duration. The new case law is therefore a significant change in how the Migration Agency will assess the requirement of ‘certain duration’ when it comes to the employment’s length. 

Background

In 2021, the Aliens Act was amended and a new requirement for permanent residence permits was introduced. The law now stipulates that a permanent residence permit may only be granted if the applicants can support themselves. According to the preparatory works to the Aliens Act, this requirement is only fulfilled if the income also has a ‘certain duration’. In the absence of relevant case law, the Migration Agency has interpreted that an income has a certain duration if it is based on an employment that is either permanent, or lasting at least 18 months from the decision date, if temporary. The Swedish Migration Court of Appeal has now provided a judgement regarding the required length of an employment for permanent residence permits to be granted. 

The case tried by the Swedish Migration Court of Appeal

The applicant in question is a doctoral candidate who first came to Sweden in 2017 through family reunification to join her husband. She has been employed as a doctoral candidate since May 2019 and her employment has been temporary, lasting a year each, and renewed several times. In July 2021, shortly after the new requirements for permanent residency were introduced, she applied for a permanent residence permit, citing her university employment, which lasted a year at a time, as durable income. The Migration Agency rejected the application, with the reasoning that an income only has a certain duration if the employment lasts for at least 18 months from the decision date (as interpreted by the Agency’s legal department). 

The rejection was appealed to the Migration Court in Luleå, which granted the appeal. The Migration Court assessed that the applicant had demonstrated that her financial capability was of sufficient scope and duration to meet the financial requirement. The court found that her employment had been renewed annually and that certificates from the University indicated that, due to regulations in the Higher Education Ordinance, the university could not employ her for the entire doctoral period, but that the university annually renewed doctoral students' contracts instead. Considering this information, the Migration Court found it likely that she would remain employed at the university and receive sufficient income from the position. The appeal was therefore granted. 

The Migration Agency appealed the judgement and requested the Migration Court of Appeal to uphold the Migration Agency’s decision, arguing inter alia that an income only has a certain duration if the employment extends for at least 18 months from the decision date. The Migration Court of Appeal first concluded that the applicant’s income was sufficiently large for her to support herself. The question was therefore whether it also had a certain duration. The court determined that there was no case law concerning the maintenance requirement when applying for permanent residency and therefore sought guidance from other legal sources governing similar circumstances. When applying for a temporary residence permit based on family reunification, the reference person must also have an income that has a certain duration. In this situation, the Migration Court of Appeal had previously concluded in MIG 2019:12 that the requirement is met if the employment lasts for at least a year, or, based on a forecast, is likely to have such income on a forward-looking basis for at least one year. 

The court argued that while permanent residence permits confer a stronger position in Swedish society than temporary residence permits, there is no reason to attribute a different or stricter meaning to the term ‘certain duration’ in the context of permanent residence permits than what follows from the established practices regarding family reunification cases. The requirement that an income must have a certain duration when applying for permanent residency should therefore be interpreted the same as when applying for family reunification. The court stated that when reviewing an application, one must allow for some flexibility, and it should not involve application of a routine fixed time limit. Instead, an overall assessment of the specific facts and individual circumstances must be made.

In this case, the applicant has had several employments lasting a year each, with annual renewals. Given her employment history, the court assessed that she had demonstrated a sufficient and continuous financial capability over an extended period. In an overall assessment of the specific facts and individual circumstances, she had therefore shown that she would be able to support herself in the future, regardless of her current employment lasting for less than a year ahead. 

Deloitte’s comments

The court’s judgement provides some long-awaited case law on how to interpret the new requirement for permanent residency. Since the new requirement was introduced, many applicants have been precluded from permanent residency because their employments have only lasted for a year at a time. Doctoral candidates in particular have been negatively affected by the change, given that Swedish law prevents them from being employed for more than a year. 

From a legal standpoint, it has been rather unfortunate that the same requirement of ‘certain duration’ has been interpreted differently by the Migration Agency in separate sections of the law. With the new case law, both predictability and legal consistency have been much improved, which is a welcome change. Furthermore, the changes should help many applicants with consistently renewed, but shorter, employments to be granted permanent residency, while at the same time not eroding the requirement that a permanent residence permit can only be granted if the applicant has an income. 

It should be noted that if a claim for permanent residency is rejected by the Migration Agency, while still granting a temporary residence permit, it is possible to appeal the part of the decision which concerns permanent residency. If such an appeal is currently pending with the Migration Court, the new case law could help win the case. 

Contact

If you have any questions, please feel free to reach out to us: 

Martina Ogenhammar
Director, Head of Immigration
Global Employer Services
mogenhammar@deloitte.se
+46 70 080 21 60

Kaltrina Abazi
Manager, Immigration - Global Employer Services
kabazi@deloitte.se
+46 70 080 32 62

Emil Johansson
Consultant, Immigration - Global Employer Services
emiljohansson@deloitte.se
+46 70 080 36 94

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