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The Migration Agency are no longer obliged to withdraw a temporary work permit
Tax News - Immigration
On the 15th of November the Swedish parliament adopted the proposed amendments to the proposition (2016/17: 212) which means that the Migration Agency may not revoke a temporary work permit if the employer has corrected the error that would otherwise have led to a withdrawal. The proposed amendment will come into effect on 1st of December 2017. The revision of the legislation implies amendments to the Swedish law Utlänningslagen (2005:716) – i.e. the Swedish Alien Act. The subsequent motions related to the proposal were all rejected.
The Swedish parliament also endorsed the committee’s proposal that the government should quickly return with a proposed legislation to be entered into force as soon as possible, but no later than 1st of July 2018, which strengthens the proportionality of the response to an error and ensures that a labour migrant is not expelled due to the fact that the employer, without intention, made minor or insignificant errors regarding the fulfilment of the conditions to obtain a work permit. This should apply even if the error is detected after the expiry of the permit or if the Migration Agency has already taken action or requested additional information.
The current immigration rules came into force on the 15th of December 2008. The purpose of the legislation was to facilitate the recruitment of a third-country labour force. The new starting point for the processing of work permit applications would instead be the employers’ own assessment of the need for recruitment of third country workers. However, after the introduction of these new procedures it was noticed that an abuse of the new rules often occurred. The abuse was thought to be due to the lack of controls and the lack of sanctions against employers who did not comply with the new regulations. Because of this, on the 1st of August 2014, legislative amendments were implemented, which allowed the Swedish Migration Board to check, among other things, that the terms of employment were fulfilled under the current permit (7 Chapter 7e § Utlänningslagen on the revocation of residence permits). In conjunction with this, a mandatory provision for revocation of the permit was also introduced if the conditions to obtain such a permit were no longer met or if the employment had not commenced within four months from the starting date of validity of the granted permit.
For an extension application to be rejected due to the fact that the work permit conditions have not been met, there would have had to be a change in regards to the circumstances that were presented to the Swedish Migration Agency when the first work permit application was filed.
Among other things, the employee’s salary, insurance coverage and other employment conditions must not have been worse than those required by the Swedish collective agreements or practices within the profession or industry. The Supreme Migration Court has in a ruling (MIG 2015:11) found that the strict application that the legal provision expresses with regards to when a permit is to be revoked means that a similar approach should also apply when examining whether a work permit is to be extended.
The strict rules regarding the withdrawal have resulted in the withdrawal of several work and residence permits and in the rejection of numerous work and residence permit extensions, which as a consequence has led to the deportation of many employees from Sweden due to minor or insignificant mistakes regarding the conditions that should have been met during the work permit period.
The government proposal
The proposal emphasized that the purpose of the rules regarding the revocation of work permits is to protect individuals from exploitation and to counteract wage dumping and unfair competition between businesses. As a rule, the Migration Agency should still have the possibility of recalling a permit when the conditions are not met. However, situations may occur when this would imply disproportional consequences for both the employee and the employer. The employer may have made mistakes that, in particular if corrected, do not necessarily involve the exploitation of the employee.
An example may be that the employer has mistaken the date of payment of the insurance premium, that the salary was too low due to a system failure in the wage payment system of the employer, that the employer has failed to determine what salary level is sufficient for the condition for the work permit to be met or that the employer has mistaken which conditions apply within the specific industry.
The amendment to the law aims to reduce the number of deportations due to minor mistakes made by the employer. The amendment also introduces an opportunity for the Migration Agency to refrain from rejecting the renewal of the permit in case the employer has remedied the shortcomings that otherwise would have led to a rejection.
Furthermore, the Swedish parliament supported the committee’s proposal that the government should quickly return with a new legislation proposal to be entered into force as soon as possible, but not later than 1 July 2018. The proposal shall involve the introduction of a proportionality assessment, with the aim of ensuring that a labour immigrant shall not be deported due to minor or insignificant deviations from the conditions for obtaining a work permit which are the fault of the employer, even if the deviation is detected after the expiration of the permit period or if the Migration Agency has already taken action or requested additional information. A commissioner will shortly be given the task of providing a legislation proposal. The proposal must be submitted by 31 December 2017.
The Swedish immigration legislation has been criticized for a long time. The strict legislation on withdrawals, especially after the Migration Supreme Court ruling MIG 2015:11, has led to many deportations due to minor errors on the part of the employer. The proposal is in line with the increasing need for mobility and the large gaps in the workforce that certain areas of the Swedish job market are currently experiencing.
The amendments that come into force on 1 December 2017 imply a long awaited relief for many employers that are dependent on a workforce from abroad. An employer who knows that the conditions for an employee’s work permit have not been met throughout the previous work permit period will be able, from the 1st of December, to remedy the shortcoming so as to avoid a rejection when the work permit is renewed. The change in the legislation does not, however, include cases where an employer has been unaware that the shortcomings have occurred or cases where the errors could not be corrected retroactively. Hopefully these issues will also be addressed in the legislation proposal that the government is