Swedish business migration update: In the light of the debate regarding deportation of foreign employees with work permits

Following a judgment passed by the Swedish Migration Appeal Court in 2015 (MIG 2015:11), a strict approach has been adopted in relation to the requirements for obtaining and retaining Swedish work permits. In its judgments, the court held that a work permit should not be renewed if the preconditions for a work permit were not met during the period of validity for the previous work permit. In a later case (MIG 2015:20), the court said that the same principle shall apply where an employee applies for a permanent residency permit

In response to the above judgments, the Swedish Migration Agency has decided to deport a number of foreign employees from Sweden, often due to trivial mistakes made by the employer. As a result, the rules regarding work permits are now subject to review by the Swedish Government.

Requirements for obtaining and keeping a Swedish work permit

At the time of writing,  when applying for a work permit the applicant should  be outside the Swedish borders throughout the time of the application being processed. There are exceptions to this rule, for example when applying for an extension to a current work permit, or if the foreign employee transfers to a  new employment in Sweden; in such case the new employer must file a new application for work permit with the Swedish Migration Agency before the foreign employee begins to work for the new employer.

For a work permit to be granted by the Swedish Migration Agency, the employer must:

1. provide the foreign employee an offer of employment,
2. offering terms and conditions that are on par with those of Swedish Collective Bargaining Agreement ("CBA"), or terms and conditions customary to the line of business. This includes a gross salary level above SEK 13,000, which must be upheld regardless of the extent of work performed, and
3. the position must be advertised on the Swedish Public Employment Service's (Sw. Arbetsförmedlingen) website for a minimum of 10 days.

The condition under point 2) above includes a requirement that the foreign employee must be covered by the following insurances throughout the entire period of employment:

• Group Life Insurance (Sw. Tjänstegrupplivsförsäkring (TGL)),
• Insurance for occupational injury (Sw. Trygghetsförsäkring vid arbetsskada (TFA)),
• Health Insurance covering compensation during an employee's long term sick leave (exceeding 90 days), supplementing the sickness benefits paid by the Swedish National Insurance Agency (Sw. Sjukförsäkring), and
• Occupational pension benefits (Sw. Tjänstepensionsförsäkring).

Further, the offer of employment must state the salary as well as the insurance coverage. Once a work permit has been granted, the employer must ensure that the required insurances are in place and that the salary stated in the offer of employment match with the salary paid.

The above requirements are interpreted strictly and retroactive corrections are rarely accepted. It is therefore crucial that the above steps are complied with throughout the whole duration of the work permit.

Consequences if the requirements are not met

The Swedish Migration Agency may declare that a work permit has become invalid if the benefits, such as salary, insurance, pension received by the employee are either not in place or lower than stipulated in the original offer of employment. The Swedish Migration Agency may, at any time during the employment, check to see whether or not an employee has received salary and other employment benefits that are on par with the original offer of employment. If found that the terms of employment have not been met, the Swedish Migration Agency can revoke the permit.

In practice however, these issues usually come to light once an application for an extension of a work permit is made. Should the employee for any reason not have received benefits as stated in the offer of employment provided in the original the work permit application, the Swedish Migration Agency will most likely not grant the extension and the employee would risk being deported from Sweden.