Swedish court decision set to ease work permit headache for border commuters

A new work permit ruling by Sweden's Migration Court of Appeal could make life easier for border commuters.

Swedish court decision set to ease work permit headache for border commuters
Thousands of people commute across the bridge between Sweden and Denmark every day. Photo: Johan Nilsson/TT

A non-EU national who lives outside of Sweden but commutes to the country for work on a daily basis may be granted a temporary residence permit, according to a new ruling by the top migration court in Sweden.

The court ruled on the case of an American citizen who lives in Denmark but works in Sweden.

He was granted a temporary work permit in 2016, but when he applied to extend it in 2018 the Migration Agency rejected his request, arguing that since he did not generally live in Sweden and had no plans to move there any time soon, he could not be seen as staying in Sweden and was therefore not entitled to a residence permit.

There are two Swedish concepts that are important to understand this conflict. One is dygnsvila ('daily rest'), a term that is often used to denote that someone resides at the place they sleep. Because the applicant did not spend his nights in Sweden, the Migration Agency argued he could not be seen as residing in the country.

The second is vistelse ('stay', which to complicate matters has a broad meaning ranging from living somewhere to just being in that place), one of the requirements for being given a Swedish residence permit. The American applicant argued that since he worked in Sweden he spent most of his day in the country and therefore met the vistelse requirement, while the Migration Court, which upheld the rejection, countered that “the term stay in the Swedish language refers to something other than daily commutes to work”.

But the man then took the case to the Migration Court of Appeal, which ruled in his favour. The court's decisions set a legal precedence and will therefore affect other work permit applicants in a similar situation in the future.

It wrote in its judgment that the man's commute did in fact meet the requirements for staying in Sweden to the extent required by the law. It added that there was no legal requirement for the man to spend the nights (his dygnsvila) in order for him to be considered to be staying in Sweden as far as the vistelse condition went.

It based its decision on preparatory work by legislators when the law was created, finding that the intent of the law was to help ensure Sweden's demand for labour was met as well as to facilitate international mobility across borders. That applies even if the applicant does not intend to permanently live in Sweden, wrote the court.

“The traditional notion that migration is to do with moving from one place to another, where the migrant intends to settle permanently, has proved increasingly insufficient to describe the migration patterns of our time,” read the court judgment, paraphrasing one of the original bills where the reasons behind the law were laid out.

“The term circular migration describes human movements between countries that may be temporary or more permanent and that can make a positive contribution to the growth of everyone involved.”

As such, the court dismissed the Migration Agency's grounds for rejection and sent the man's case back to the agency, which will now have to review whether or not he fulfils other requirements for a work permit.

The full court jugdment can be read (in Swedish) here.

Do you have any questions about this or life in Sweden? You are always welcome to contact our editorial team at [email protected]. We are a small team and may not be able to reply to every email, but we read them all and they help guide our editorial coverage.

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How foreigners can get on the fast track for a work permit in Sweden

It can now take about six months to get a work permit in Sweden, and a year for an extension. Here's how you can get on the fast track.

How foreigners can get on the fast track for a work permit in Sweden

How long does it normally take to get a permit to work in Sweden? 

According to the calculator on the Migration Agency’s website, 75 percent of first work permit applications are completed within three months, and 75 percent of work permit extensions are completed within 14 months. 

These numbers, though, are only for people in non-risk industries. If you are applying for a job in the cleaning, building, hotel and restaurant, or car repair industries — all of which are seen as high risk by the agency — applications can take much longer to be approved. 

For these industries, the calculator suggests a long 12-month wait for a first application and a 17-month wait for an extension. 

This is because of the higher number of unscrupulous employers in these industries who do not pay foreign workers their promised salaries, or do not fulfil other requirements in their work permit applications, such as offering adequate insurance and other benefits. 

So how do you get on the fast track for a permit? 

There are two ways to get your permit more rapidly: the so-called “certified process” and the EU’s Blue Card scheme for highly skilled employees. 

What is the certified process?

The certified process was brought in back in 2011 by the Moderate-led Alliance government to help reduce the then 12-month wait for work permits.

Under the process, bigger, more reputable Swedish companies and trusted intermediaries handling other applications for clients, such as the major international accounting firms, can become so-called “certified operators”, putting the work permit applications they handle for employees on a fast track, with much quicker processing times. 

The certified operator or the certified intermediary is then responsible for making sure applications are ‘ready for decision’, meaning the agency does not need to spend as much time on them. 
You can find answers to the most common questions about the certified process on the Migration Agency’s website

How much quicker can a decision be under the certified process? 
Under the agreement between certified employers and the Migration Agency, it should take just two weeks to process a fresh work permit application, and four weeks to get an extension. 
Unfortunately, the agency is currently taking much longer: between one and three months for a fresh application, and around five to six months for an extension. 
This is still roughly half the time it takes for an employee seeking a permit outside the certified process. 
The Migration Agency told the Dagens Nyheter newspaper in a recent article that in September the average decision had taken 105 days, while over the year as a whole, applications for certified companies had taken 46 days, and those for non-certified companies 120 days. 

How can someone planning to move to Sweden for work take advantage of the certified process? 
Unfortunately, it is very much up to your employer. If you are planning to move to Sweden for work, you should make sure to ask prospective employers if they are certified, or sub-certified through an intermediary firm, and take that into account when deciding which company to take a job with. 
Smaller IT companies are often not certified, as they tend to start off by recruiting from within Sweden or the European Union. 
If you have begun a work permit application with a company that is not certified or sub-certified, then you cannot get onto the fast track even if your employer gets certified while you are waiting for a decision. 
The certified process can also not be used to get a work permit for an employee of a multinational company who is moving to the Swedish office from an office in another country. 
If my employer is certified, what do I need to do?
You will need to sign a document giving power of attorney to the person at your new company who is handling the application, both on behalf of yourself and of any family members you want to bring to Sweden.  
You should also double check the expiry date on your passport and on those of your dependents, and if necessary applying for a new passport before applying, as you can only receive a work permit for the length of time for which you have a valid passport. 

Which companies are certified? 
Initially, only around 20 companies were certified, in recent years the Migration Agency has opened up the scheme to make it easier for companies to get certified, meaning there are now about 100 companies directly certified, and many more sub-certified. 
To get certified, a company needs to have handled at least ten work permit applications for foreign employees over the past 18 months (there are exceptions for startups), and also to have a record of meeting the demands for work and residency permits.  
The company also needs to have a recurring need to hire from outside the EU, with at least ten applications expected a year. 
The Migration Agency is reluctant to certify or sub-certify companies working in industries where it judges there is a high risk of non-compliance with the terms of work permits, such as the building industry, the hotel and restaurant industry, the retail industry, and agriculture and forestry. 
Most of the bigger Swedish firms that rely on foreign expertise, for example Ericsson, are certified. 
The biggest intermediaries through whom companies can become sub-certified are the big four accounting firms, Ernst & Young, Deloitte, KPMG, and Vialto (a spin-off from PwC), and the specialist relocation firms Human Entrance, and Alpha Relocation. Bråthe estimates that these six together control around 60 percent of the market. Other players include K2 Corporate Mobility, Key Relocation, Nordic Relocation, and some of the big corporate law firms operating in Sweden, such as Ving and Bird & Bird. 

What is the EU Blue Card, how can I get one, and how can it help speed up the work permit process? 
Sweden’s relatively liberal system for work permits, together with the certification system, has meant that in recent years there has been scant demand for the EU Blue Card. 
The idea for the Blue Card originally sprung from the Brussels think-tank Bruegel, and was written into EU law in August 2012. The idea was to mimic the US system of granting workers a card giving full employment rights and expedited permanent residency. Unlike with the US Green Card, applicants must earn a salary that is at least 1.5 times as high as the average in the country where they are applying.
Germany is by far the largest granter of EU blue cards, divvying out nearly 90 percent of the coveted cards, followed by France (3.6 percent), Poland (3.2 percent) and Luxembourg (3 percent).

How can I qualify for a Blue Card?

The card is granted to anyone who has an accredited university degree (you need 180 university credits or högskolepoäng in Sweden’s system), and you need to be offered a job paying at least one and a half times the average Swedish salary (about 55,000 kronor a month).

How long does a blue card take to get after application in Sweden? 

According to the Migration Agency, a Blue Card application is always handled within 90 days, with the card then sent to the embassy or consulate named in the application.

In Sweden ,it is only really worth applying for a Blue Card if you are applying to work at a company that is not certified and are facing a long processing time.

EU Blue Cards are issued for a minimum of one year and a maximum of two years.