COVID-19 & Immigration Law: Implications in Sweden

By Olivia Onwuta

03-2020

For Swedish employers who employ non-EU citizens, the COVID-19 outbreak has created a number of business immigration related issues. To date, a majority of the issues are surmountable, but some may create problems for employers in the near future. Employers are advised to consider the possible implications that the COVID-19 outbreak may have from a business immigration perspective, and take precautionary measures to comply with the applicable legislation. 

Please note that special rules apply for some occupations (for example artists, au pairs, seasonal workers and athletes).

Compliance Issues

Reductions in salary or working hours for work permit holders

Work permits are extended based on an assessment of whether the conditions for a work permit have been met during the periods of validity for the previous work permit periods. Thus, reducing the salary and/or working hours can affect the possibility to be granted an extension of the work permit:

  • During the entire work permit period, the employee must have received a salary at least equivalent to what is stated in the relevant collective bargaining agreement or best practice in the profession or industry. The salary must, in addition, be at least SEK 13,000 per month. 
  • Thus, the salary of any work permit holder who, in the future, will apply for an extension of the permit may not be reduced, in case such a reduction would lead to a salary which is lower than what is stated in CBA or best practice and/or SEK 13,000 per month. 
  • This also means that reductions in working hours (i.e. through short-time work) are acceptable, provided that the conditions for a work permit are being met during the work permit period.
  • However, as the Swedish Migration Agency (the "SMA", Sw. Migrationsverket) might question any reduction in salary, even if the new salary meets the above requirements, we suggest avoiding any salary reductions below the advertised salary or the salary stated in the work permit decision. 
  • If any changes to the work conditions are made, the employer should make sure to save documentation that states the changes (for example any applicable short-time work agreements).

Significant changes to job duties

During the first 24 months of validity, work permits are limited to the employer and the position that is stated in the decision. Thus, the employees' work duties should not be changed in a way that would entail a change of his/her position. Such a change can, in worst case, lead to claims of employing illegal workers, as the work permit does not cover other positions. It may also negatively affect a later application for an extension of the work permit. 

Unpaid leave

Because work permits are extended based on assessment of whether the conditions for a work permit have been met during the validity period, the possibilities to place a work permit holder on unpaid leave are limited. The SMA normally accepts absence from work due to sick leave or parental leave. In such cases, the employee should provide documentation from the Swedish Social Insurance Agency (Sw. Försäkringskassan) proving that he/she has received payments from the Agency. 

In light of this, is unclear if (and unlikely that) the SMA will accept a work permit holder being placed on unpaid leave due to the COVID-19 outbreak.

Logistical Issues

Delay in work start date for new work permit holders

If the employee does not begin his/her employment in Sweden within four months from the date of the decision, the work permit can be revoked. This rule may create problems as the employee may not be able to travel to Sweden within the four month period because of the COVID-19 outbreak. 

Officials at the SMA have, unofficially, stated that regulations providing an exemption from the four-month rule may be issued in the near future. However, there are currently no applicable exemptions and the employer must consider the risk of the work permit being revoked in case the employee is unable to travel to Sweden within the four month period. 

Leaving biometric information at overseas Swedish embassies

Any first-time applicant (and all co-applicants) who cannot travel to Sweden without a visa must chose an overseas Swedish embassy to leave biometric information at. Since only a limited number of Swedish embassies handle such procedures, and considering current travel restrictions issued by many states, the employee may struggle to find a suitable nearby embassy to visit. 

This issue does not affect the possibility to be granted a work permit, but it can lead to a delay in the work start date (and the implications that such a delay has, as mentioned above). 

Work permit holders' absence from work because of travel restrictions

If a work permit holder is currently not in Sweden, and is unable to travel to Sweden for work due to travel restrictions following the COVID-19 outbreak, a later application for an extension of the work permit may be affected.

When applying for an extended work permit, the employee must show that the conditions for a work permit have been met during the entire period of validity. As mentioned, the SMA accepts absence due to sick leave or parental leave and it is currently unclear if the SMA will accept absence from work due to inability to travel because of the COVID-19 outbreak.

Where can employers and employees access local and national advice?