The Migration Court of Appeal has ruled in two cases regarding extensions of work permits

Overview

The Migration Court of Appeal has ruled in two cases regarding extensions of work permits, where the applicants’ terms of employment during the previous permit period failed to reach the requirements imposed by the Swedish Migration Agency.

The Migration Court of Appeal has in their rulings claimed the following:

• An overall assessment of the employment conditions must be made
• The overall assessment is based on the entire previous permit period, not month by month
• A higher salary may compensate for an inferior insurance cover and vice versa
• The possibility to compensate for previous errors through a retroactive payment of salary should exist
• An employer cannot be required to offer terms which fully match the collective bargaining agreements
• The requirements of the Swedish Migration Agency, regarding insurance cover, exceed the collective bargaining agreement levels

The rulings of the Migration Court of Appeal which have a prejudicial effect bring a welcome review of the current practice and imply a requirement for the Swedish Migration Agency to make an overall assessment of all employment conditions throughout the previous permit period when processing extension permits.

Background

The current immigration legislation came into force on December 15, 2008. The purpose of the legislation was to facilitate the recruitment of a third-country labor force and implies that the previous government-based labor market test would no longer be required. The new starting point for the processing of work permit applications would instead be the employer’s own assessment of the need for recruitment of third-country labor. However, after the introduction of these new rules, they began to be exploited. This misuse was thought to be due to defective controls and lack of sanctions against employers who did not comply with the rules.

As a result of this, on 1 August 2014, constitutional amendments were implemented which allowed the Swedish Migration Agency to check the terms of employment under the current permit (7th chapter 7e § of the Aliens Act on revocation of residence permits).

In connection with this, an obligatory provision for annulment was also introduced. This could be applied if the conditions for authorization were no longer fulfilled or if the employment had not begun within four months from the first date of the validity of the permit. In order for an application for an extended permit to be rejected due to the conditions not being fulfilled, there must have been a change in the circumstances that the granted work permit was based on.

Among other criteria, the employee’s salary, insurance coverage and other employment conditions cannot be worse than what is stated in the Swedish collective bargaining agreements or according to the relevant practices for the profession or business, as stated in Chapter 6 2 § 1 st. Aliens Act. The Migration Court of Appeal (MIG 2015: 11) has previously found that a strict interpretation of the current legislation regarding the annulment of work permits should be applied and that a similar method should apply when examining whether work permits are to be extended.

This strict application of the legislation regarding permit revocations has resulted in several residence permits and extensions being revoked meaning that many employees have been deported from Sweden due to minor or insignificant mistakes related to the terms for work permits.

The rulings of the Migration Court of Appeal

The Migration Court of Appeal has announced their rulings in two cases. Both of the rulings were related to extension cases where the applicant's employment conditions throughout the previous permit period did not reach the requirements enforced by the Swedish Migration Agency.

In the first case, the applicant received a salary that was 460 SEK lower than the collective bargaining agreement's salary level due to a mistake made by the employer over a period of five months. The applicant later received retroactive compensation for the difference and the salary level for the remaining permit period exceeded the collective bargaining agreement salary level.

In the second case, the applicant was not covered by health insurance and occupational pension insurance for a period of 20 months due to an administrative mistake. The employer retroactively made premium payments to the occupational pension insurance when they discovered the mistake. During the remaining permit period, the applicant had full insurance coverage and the applicant also had a salary level that exceeded the collective bargaining agreement level during the entire permit period.

The Migration Court of Appeal has in their rulings stated that an overall assessment has to be made of the applicant's terms of employment in order to decide whether the terms are equal to those stated in the Swedish collective bargaining agreements or practices in the business. The Migration Court of Appeal also provided an example in one of the rulings that a lower insurance cover can be compensated by a higher salary and vice versa. Chapter 6 2 § 1 st. 2 p.in the Aliens Act cannot therefore be regarded as imperative for each employment condition separately.

Furthermore, the Migration Court of Appeal claims that an assessment cannot be made for each month in isolation. The assessment should instead be based on the entire permit period and it should be possible to correct previous mistakes, for example through a retroactive payment of salary.

As a final point, the Migration Court of Appeal has stated, based on the obtained opinions from Saco (Sweden's Engineers) and the Swedish Industry Association, that it is not necessary for an employer to offer conditions which fully correspond to the collective bargaining agreements. They also stated that the insurance requirements set by the Migration Agency go beyond the insurance coverage required by the collective bargaining agreements and business practice.

Both applicants were, based on an overall assessment of their employment terms, granted a permanent residence permit and an extended work and residence permit.

Deloitte's comments

The Swedish immigration legislation has been criticized for a long time. The strict interpretation of the legislation regarding withdrawals, especially after the decision of the Migration Court of Appeal (MIG 2015:11), has led to several deportations due to minor errors made by the employer.

In the rulings, the Migration Court of Appeal comments on several of the issues that have recently been criticized by the public and received substantial media coverage. The Migration Court of Appeal rejects the Swedish Migration Agency’s view on what constitutes an acceptable salary level, which insurance coverage will be required for third-country nationals and above all the strict interpretation that all deviations from the stipulated requirements by the Migration Agency shall result in a rejection/withdrawal. The rulings are also in line with the proposal that the government has been commissioned to implement which implies that a proportionality assessment should be introduced when determining if an applicant has met the criteria to be granted a permit extension.

Deloitte are positive to the rulings of the Migration Court of Appeal and welcome a legal development in accordance with the rulings. As the rulings have a prejudicial effect, we hope that it will cause fewer applicants to be deported due to minor or insignificant mistakes in the conditions for the work permits.