New legislation introducing combined residence and work permit

As Deloitte has previously informed, the government proposed an implementation of the Directive 2014/66/EU into Swedish legislation (prop. 2017/18:34) during the autumn of 2017. This directive was issued from the European Parliament and the council on 15th of May, 2014, on the conditions of entry and residence of third country nationals, in the context of an intra-corporate movement of staff (ICT-directive). 

On 7th of February, 2018, the Parliament approved the Government’s proposal of the implementation of the ICT Directive. The new legislation will enter into force on the 1st of March, 2018.

The new legislation introduces a combined residence and work permit which will be applicable to intra-corporate transfers of managers, specialists and interns from companies established outside the EEA and Switzerland. The permits shall be referred to as ICT-permits (Intra Corporate Transfer). The new legislation aims to simplify the transfer of workers within business groups – both to and within the EU.

Background

The new legislation entails adding a new chapter to the Aliens Act (2005:716) with the following changes:

• It introduces a combined residence and work permit relating to intra-corporate transfers of managers, specialist and trainees from companies established outside the EEA and Switzerland – so called ICT-permits.
• Employees who have been granted an ICT-permit in another EU-state may travel and work in Sweden for a maximum of 90 days, during a 180-day period, at a company belonging to the same company group. An application for a Swedish ICT-permit or an ICT-permit for long term stays is required if the stay is longer than 90 days.
• Family members are entitled to a residence permit for the same period as the applicant.
• The total permit period may not exceed three years for managers and specialists or one year for interns.

For further information regarding the permit, please see Deloitte’s previous immigration alert.

Deloitte’s comment

The proposed changes to the legislation have now been implemented. It is difficult to predict the practical effects of the new legislation without a consolidated practice from the Swedish Migration Agency. Although the legislation lists the requirements for the employees to obtain an ICT-permit, it remains to be seen which documents will be requested and what requirements will be set by the Swedish Migration Agency in practice for example to prove, among other things, the applicant’s qualifications and competence level. Choosing the correct SSYK-code to ensure that the services are classified within the specified category of managers, specialists or interns will be of importance.

The requirements set at this point are that individuals applying for the ICT-permit should have an expertise which is essential for a company’s business, technology or management and possess a high level of qualification including a high level of professional experience for the type of work that requires special skills. In the proposal, it is stated that the Migration Agency will not perform a closer check of the employee’s qualifications apart from a more general check of the curriculum vitae. The assessment of whether an employee should be considered a specialist or not is therefore the responsibility of the employer. Based on this, Deloitte sees certain difficulties in terms of employer’s ability to assess on a case-by-case basis whether an employee qualifies as a specialist or not. 

In addition to the previously provided information regarding the new ICT-permit, the following conditions and aspects are worth mentioning:

• An application for an ICT-permit should be submitted to the Swedish Migration Agency if the employee intends to stay only in Sweden or if he intends to stay in several Member States but the stay in Sweden will be the longest.
• The permit period may not be longer than the planned length of the assignment.
• The government is of the opinion that an employee holding an ICT-permit or an ICT-permit for long-term stay may apply for and be granted a national work- and residence permit after entry into Sweden if the conditions for obtaining a national permit have been met.
  
  It is still unclear how a change from an ICT-permit to a regular Swedish work- and residence permit will be done in practice. However, it should be possible to make a status-change within Sweden without leaving the country during the processing time of the new application.
  
  Another interesting question is whether any official cool-off period will be communicated, i.e. how long the employee will have to wait in order to apply for a new ICT-permit, should this be possible after reaching the maximum period of the ICT-permit’s validity
• The time during which the employee holds an ICT-permit will be taken into account when applying for a permanent residence permit. A permanent residence permit should therefore be granted to a foreigner who has held one of the following permits for a total of four years in the past seven years: An ICT-permit permit issued in Sweden, an ICT-permit for long-term stays, an EU Blue Card or a Swedish work- and residence permit.
• According to Chapter 6b, 3rd paragraph, an ICT-permit cannot be granted if the foreign national is resident within the European Union, is an EEA-citizen or a citizen of Switzerland. It is therefore required that the application is submitted by employees residing in a third country.
• An online application will be available on the Migration Agency’s website from April 2018. Until then, the employee can only apply on paper. The Application form will be available for download from 1st of March, 2018. The processing time should not exceed 90 days and the permits cannot be processed under the certified process for faster processing times. The governmental fee for applying for an ICT-permit is 2,000 SEK.
• The legislation regarding ICT-permits is to be considered superior to the national Swedish legislation regarding regular work- and residence permits. This implies that the employees who meet the requirements for an ICT-permit cannot be granted work- and residence permits according to Chapter 6, 2nd paragraph of the Aliens Act.

Deloitte welcomes the new legislation as it provides a needed improvement as regards to the ability carry out assignments in more than one EU-country under the same permit. However, the last point listed above may have a negative effect on employers who are currently moving managers, specialists and interns within a global company group. These employers have previously been able to apply for a work- and residence permit within the certified process with a processing time of 10 days.

Given that the processing time for ICT-permits will be a maximum of 90 days, and that the employer itself will not be able to choose freely between a standard work- and residence permit and an ICT-permit, it is important that the Migration Agency’s processing time will not be significantly longer than the processing time within the certified process as this may result in negative effects for the business of these companies.

Deloitte will monitor how the Migration Agency will implement the legislation in its internal processes as well as which documents and what information will be required from employers and employees in order for the Migration Agency to approve an application for an ICT-permit.