New proposal from the Swedish government regarding a combined residence and work permit for third-country nationals

Summary

The Swedish government have proposed an implementation of the EU-directive 2014/66/ EU into Swedish legislation (prop. 2017/18: 34). This directive was issued from the European Parliament and the council on the 15^th 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).

The proposal suggests that a combined residence and work permit should be introduced which will be applicable to the intra-corporate transfer 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 proposal aims to simplify the transfer of workers within business groups - both to and within the EU.

Background

According to current legislation, all third-country nationals, i.e., non EU/EEA citizens, who will be staying in Sweden for more than three months, must have a residence permit. However there are exceptions for foreigners who have a visa valid for longer than three months.

For individuals that are not EU/EEA citizens with permanent residence rights in Sweden or Switzerland to be eligible to work in Sweden, a work permit is usually required. The current regulations are general and apply to all kinds of work. Exemptions from the requirement for a work permit have, however, been available for some professional groups. For example:

• Specialists in an international company group (the total stay in Sweden cannot exceed twelve months)
• Employees of an international company group that will participate in an internship, training or will be conducting tests, preparing or finishing deliveries or similar tasks in Sweden (the stay in Sweden may not exceed three months in a twelve-month period)

These positions are exempted from the requirement for a work permit to work in Sweden. However, as the regulation is designed for specialists and interns, an application for work and residence permits is required to be sent to the Swedish Migration Agency if the total working period exceeds the restrictions for the respective assignment. The applicant must always apply for a residence permit if the applicant stays more than three months in Sweden. 

The proposal

The Swedish government's proposal recommends the implementation of Directive 2014/66 / EU of the European Parliament and of the council of 15^th of May 2014 on the conditions of entry and residence of third country nationals in the context of intra-corporate transfers of employees (ICT directive) into Swedish legislation. The purpose of the ICT- directive is to simplify the process for employers moving skilled workers both to and within the EU between different companies within the same group. It is also intended to strengthen both EU competitiveness and the economy.

The proposal 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 relocation of managers, specialists and interns 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 longer stays is required
• Family members are entitled to a residence permit for the same period as the applicant

The application for an ICT-permit shall be made before entering the EU. In order for an ICT-permit to be granted, the following conditions must be met:

• The employee must be employed by a company established outside the EEA and Switzerland and there should be an intention to work for more than 90 days in a company established in Sweden. The employment has to be in the same company group as the employment company
• The employee must have been employed by the company for at least three months before the transfer
• The employment conditions must meet the same requirements as stated in the Swedish collective agreements or other industry practices. The employment conditions must also fulfil the requirements according to the Posting of Workers Act
• The compensation shall cover the applicant’s living expenses
• If the employee intends to stay for no more than one year, the employee has to prove that they have applied for complete health insurance coverage
• The employee has the professional qualifications and experience required for the job position or has the obligatory education as is required for the internship
• At the end of the assignment the employee must be transferred to another unit within the company in a third country
• The employee must not constitute a threat to public order etc.

The total time allowed for an ICT-permit may not exceed three years for managers and specialists or one year for those seeking internships.

Implementation

If the proposal is approved by the Swedish government it will enter into force on the 1^st of March, 2018. The government is keen on a speedy process due to the fact that the ICT- directive under Article 27 of the Statute of the European Union should have already been implemented by 29^th of November 2016.

After the ICT-directive has been implemented into Swedish legislation, the general rules regarding work- and residence permits will apply in addition to the rules for intra-corporate transfers. If an individual is covered by the conditions for the ICT-permit, no other work and residence permit will be issued.

Comments from Deloitte

The Swedish government's proposal provides a welcome improvement as regards to the ability to carry out assignments in more than one EU-country under the same permit. At the moment, a work permit is often needed in every country to have the ability to work in more than one EU-country. This entails multiple and potentially extended application periods, which counteracts smooth and business-driven mobility.

Although the proposed ICT-permit only applies to certain professions, these simplifications should provide an opportunity for companies to share specialist skills within a company group more easily. They allow a third country national to move freely within the EU to share knowledge and also allow a trainee to acquire knowledge from other companies within the company group. This should, in accordance with the purpose of the law, be able to strengthen EU competitiveness through faster and simpler processes and have a positive economic impact.

Although the proposal lists the requirements for workers to obtain an ICT-permit, it remains to be seen which documents will be requested and what requirements will be made by the Swedish Migration Agency in practice to prove the qualifications. 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. Further, it remains to be seen whether these conditions will be covered by the certification for a faster processing time. At present, the proposal is that the processing time should be a maximum of 90 days.

Deloitte welcomes the new proposal and will monitor further developments.