Certain rules regarding residence permits following a no-deal Brexit

Overview

On October 1st, the Swedish government proposed further legislation regarding time-limited or permanent residence permits for British citizens following a no-deal Brexit. The proposal contains the following:

• A new temporary regulation that allows British citizens and their family members to obtain a permanent residence permit after an application with the Swedish Migration Agency if they had permanent right of residence in Sweden on the day before the UK leaves the EU.
• The new regulation will also provide an opportunity to obtain a time limited residence permit of 5 years, if the British citizen or their family members qualified for right of residence but not permanent right of residence in Sweden.
• The regulation will not apply to British citizens who had right of residence based on family ties to another EU national. The British citizen must have right of residence based on their own merits.
• If a British citizen or their family members apply for a time limited or permanent residence permit based on their permanent or non-permanent right of residence, they are exempt from the requirement of a work permit during the processing time with the Migration Agency.

The new temporary regulation is suggested to enter into force on January 1st 2020. Additional suggested legislation will enter into force on May 1^st 2020.
 

Background

Deloitte has previously reported on the UK’s forthcoming exit from the EU and the negotiations regarding this; for further reading please see our previous alert from January 24th 2019 regarding Measures facilitating British citizens’ staying in Sweden in case of a no-deal Brexit.

The negotiations regarding the terms of the UK’s exit have been ongoing since June 2017 and the British parliament has yet to agree on a proposal for an exit treaty that would be accepted by the European Parliament.

The UK’s initial exit date was March 29th 2019, although this was extended to October 31^st 2019 since the British Parliament voted no to the original exit treaty negotiated between the European Parliament and the British government. An additional extension requires consensus from all EU countries and it therefore seems today that there is a high risk of a no deal Brexit despite the UK legislating to avoid this with the so called Benn Act.

From a migration law perspective, a no-deal Brexit has implications for the large number of EU citizens living in Great Britain today as well as the British citizens living in EU territories today. Approximately 20 000 British citizens are currently living in Sweden. The majority of these people are likely residing in Sweden while utilizing the EU right of residency rules. These British citizens are also subject to the EU rules on freedom of movement, which grants them a far-reaching right to travel into, reside in, and work freely within the EU member states. Great Britain’s exit from the EU means that British citizens will no longer enjoy freedom of movement within the EU. If no other legislation is put forward, British citizens will be subject to national laws applicable to third country nationals.

A law that facilitates British citizens’ staying in Sweden in case of a no-deal Brexit entered into force on July 15^th 2019 and in the new memorandum the Swedish government proposes more long-term solutions such as permanent residency for British citizens residing in Sweden.
 

Suggested changes

The proposal presented of a temporary regulation with specific provisions for residence permits targets British citizens who will lose their right to stay in Sweden as a result of Great Britain’s exit from the European Union. People who fall within this exception are British citizens who have proven their right of residency and their family members who live in Sweden at the time of the UK’s exit from the EU. The proposal also applies to family members who are third country nationals and who qualify as family members of an EU national with right of residency. British citizens who at the time of Britain’s exit do not live in Sweden or do not qualify for permanent residency will not be subject to this exception. Persons who wish to come to Sweden after October 31^st 2019 will need to apply for work and residence permits right away, the same as other third country nationals.

As a result of the law that entered into force on July 15^th 2019, British citizens will have the possibility to continue to live in Sweden without a work and residence permit for a period of up to a year, which allows them the opportunity during this year to apply for a permanent residence permit according to the new regulation proposed. Since this one year grace period was initially intended to last until March 29^th 2020, the Swedish Justice Department has begun working on extending this deadline in light of the recent extension of the Brexit deadline and possible subsequent extensions.

The proposed regulation gives British citizens and their family members the possibility to transfer their right of residency to a permanent or time-limited residence permit. The intention is for the rules to be implemented in order to facilitate British citizens continuing to live in Sweden under similar conditions post Brexit. The proposed provisions are similar to regulations that Great Britain has proposed for EU nationals with similar circumstances living in the UK. British citizens and their family members will be able to apply for and receive permanent residency if they had permanent right of residency in Sweden the day before Brexit. When the Migration Agency evaluates such an application, which must be submitted by October 31^st 2020 at the latest, the applicant must still fulfil the same requirements that an EES national must fulfil in order to enjoy right of residence in Sweden.

The proposed regulation also gives British citizens who do not have permanent right of residency on the day the UK leaves the EU the possibility of receiving a time limited residence permit valid for 5 years, if the British national qualified for right of residency on the day of the application. If the British citizen at the time the application is considered by the Migration agency qualifies for permanent right of residency, the applicant may receive a permanent residence permit in Sweden. If a British citizen or their family member applies for a time limited or permanent residence permit based on their permanent or non-permanent right of residency they are exempt from the requirement of having a valid work permit during the entire processing time for their application.

The new regulation will not apply to British citizens who had right of residency based on family ties to another EU-national. The British citizen must have right of residency based on their own merits. Time limited residence permits can according to proposed legislation be withdrawn if the foreign national does not meet the requirements for right of residency that an EES citizen or a family member to an EES citizen would need to meet. Even permanent residence permits can be withdrawn for a foreign national who is no longer residing in Sweden or who has notified the Migration Agency that they wish to return to Sweden but have not done so within 2 years. These provisions are the same as apply to third country nationals with permanent residence permits in Sweden today.

This new system of giving British citizens with right of residency permanent residence permits is intended to provide a more long-term and stable solution than the previous temporary legislation. The proposal is however only temporary and not intended to replace the current Swedish work and residence permit system.
 

Deloittes commentary

The Swedish government’s proposal gives British citizens and their family members who work and live in Sweden today a welcome respite. The regulation allows them to continue working and living in Sweden even after a no-deal Brexit.

The possibility for British citizens who are and have been residing in Sweden on the day of the UK’s exit from the EU to transfer their right of residency to a residence permit is a welcome proposal. The Commission has urged EU member states to take a generous position regarding British citizens and their family members who are living in member states. Many Britons who today reside in Sweden have also been living here long enough to have permanent right of residence, and forcing them to begin from scratch by applying for work and residence permits would not be a reasonable solution.

It will be possible to apply for a residence permit until and on October 31^st 2020, a year after the intended exit day for Britain. The possibility of staying in Sweden without a work and residence permit during the entire processing period as long as the application was submitted by the deadline is positive, considering the one year general exemption provision in the legislation that entered into force on July 15^th 2019. There is however a risk that the Migration Agency will not be able to process the considerable amount of applications that will be submitted during this one-year period despite the fact that the grace period may be extended.

The regulation only provides the opportunity for British citizens to apply for time-limited or permanent residence permits if they were exercising their right of residency at the latest on the day before Brexit. Considering this, we recommend that Swedish companies with British citizens in their workforce review who may qualify for right of residency and thereby ensure they take advantage of the opportunities available. The burden of proof regarding whether the right of residency requirements are met lies with the applicant, which means that it is in the applicant’s best interests to register with the Swedish population registry before the UK’s exit date if possible since this is a strong indicator of the right of residency. We also recommend that employers look into contractual problems, their more mobile workforce and their capacity to handle migration questions in the future if large parts of the workforce are British nationals.

For those who intend to move to Sweden after October 31st 2019 we recommend that they apply for work and residence permits as soon as possible since it may take a number of weeks to obtain the permit, even if the application is submitted through the Migration Agency’s certified process with shorter processing times.

Deloitte will continue to follow the developments of the Brexit negotiations and the memorandum mentioned above that will be sent in referral. A no-deal Brexit is not yet reality but neither is it an unlikely outcome.

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