Changes in Swedish immigration law
On 15 December 2008 several changes in the Swedish Aliens Act (2005:716) came into force. The purpose of the changes is to facilitate the recruitment of a foreign work force (i.e. citizens from outside the EU/EEA and Switzerland).
The requirements for obtaining a work permit have not changed in practice. However, there has been a codification of previous practice. It is now expressly stated in the legislation that the employee/assignee must earn enough money to be able to support himself, and that the terms of employment must be equivalent to those provided by a Swedish collective bargaining agreement, or to customary terms and conditions for the occupation or industry. The relevant union must also be given the opportunity to give their opinion regarding the terms and conditions of employment.
One significant change is that the Swedish Migration Board will be the only decision making authority with regard to work permit applications. Previously there were two decision making authorities: the Public Employment Service and the Migration Board.
Submission of application
As a main rule, the application for a work permit shall be made in the country of the applicant’s origin the country where he resides. However, according to the new rules, students holding a student residence permit who have completed at least 30 higher education credits, or one semester/term of postgraduate education in Sweden, may file an application for work permit whilst in Sweden. The same applies for job applicants who have received an offer of employment and who are in Sweden to visit an employer, and there is special need to begin the work immediately.
Validity period of work permit
According to the new rules, a work permit can be granted for a maximum period of 2 years at a time. The aggregate maximum period to be granted a temporary work permit is 4 years. After that, the intention is that the foreigner can apply for a permanent residence permit.
Previously, a work permit was always restricted to a specific occupation and employer. According to the new rules, the work permit is restricted to a specific employer and specific occupation during the first 2 years. If the work permit is extended after 2 years, it is restricted only to a specific occupation.
Termination of assignment/employment
If an assignment/employment is terminated prematurely, the Migration Board may revoke the work permit. However, the assignee/employee may, according to the new rules, stay in Sweden and search for a new job for 3 months after the date when the employment ends. Unless the employee finds a new job during that period, the Migration Board may revoke the work permit and the person must leave Sweden.
Permanent residence permit
Foreign nationals who have held a temporary work permit for an aggregate period of 4 years within a 5 year period may, according to the new rules, be eligible for a permanent residence permit. The motivation behind the new provision is that, during the 4 year period, the foreigner has contributed to the development of society and obtained a strong connection to Sweden. For this purpose, the foreigner should normally be eligible for a permanent residence permit provided that the general requirements for obtaining a residence permit are fulfilled.
Effect on employers
The intention of the changes in Swedish immigration legislation is to facilitate the recruitment of foreign workforce by making the work permit application system more flexible for foreign nationals and Swedish employers.
Did the employer’s failure to provide rehabilitation measures constitute constructive dismissal?
According to the preliminary works of the Swedish Employment Protection Act (1982:80), and to principles established by the Swedish Labour Court, an employee’s resignation from employment may, in some circumstances, constitute constructive dismissal. In order for this to be the case, an employee’s resignation must be as a result of their employer’s behaviour. To prompt constructive dismissal, the employer’s behaviour must have been incompatible with good practice in the labour market, or otherwise inappropriate. It is not required that the employer directly intended to induce its employee to resign. However, it is sufficient that the employer could have envisaged that its actions would lead to a difficult situation for the employee, and present a risk that the employee would resign.
B.N was employed as a teacher with a municipal school in Malmö, in southern Sweden. In December 2003, the employer sent the employee a written warning that he had acted inappropriately toward his students. Following this the employee reported in sick until the 28 October 2005, when he immediately resigned from his employment due to his health and economic situation. During the sickness period, the employer carried out a rehabilitation investigation which was forwarded to the Social Security Agency.
A meeting was held with the employee regarding the warning, and another meeting was held where the employee’s work situation was discussed. After the resignation, the employer sent a letter to the employee, inviting him to a new rehabilitation meeting on 31 October 2005. The parties also tried to agree on a financial settlement.
The question in dispute was whether the employer had induced the employee to resign from his employment by not taking sufficient rehabilitation measures and whether the employee’s resignation could constitute constructive dismissal.
The Labour Court held that the employee had been offered opportunities to return to work, but had not showed any interest in returning to work. Although the employer could be criticised for not taking more action, the Labour Court found that the employer had not acted passively. The Labour Court therefore found that the employer’s actions did not constitute a violation of good practice on the labour market and were not otherwise inappropriate. The employee’s resignation was not therefore regarded as constructive dismissal.
Effect on employers
This decision indicates that, provided an employer does not act passively in its measures to assist a sick employee with a return to work, the risk that the employee’s resignation is regarded as a constructive dismissal should be significantly low.
The Labour Court delivered its decision on 17 December 2008 in case no AD 106/2008.