Change in the law and new practice regarding work permits

The Swedish Parliament has determined that the Swedish Migration Board can refrain from revoking a residence and work permit if the employer in question has corrected the weaknesses in the terms and conditions of the employment which would have, otherwise, led to withdrawal of such permits. This change in the law came into effect on 1 December. Furthermore, the Migration Court of Appeal announced a decision on 13 December whereby an individual who had been denied extension of their work and residence permits are granted extension in spite of the fact that the salary for a portion of the previous permit period had been less than the collectively agreed upon salary level.

A number of cases involving the revoking of work permits and rejection of the extension of work permits where the employer has made smaller errors as regards the employee’s employment terms have been reported in the media during recent weeks. A number of changes in the regulations regarding work and residence permits are underway and the first change in the law is one addressing the revoking of work permits. Examples of situations where this change can apply are when:

• An employer erroneously assesses that a correct amount of insurance has been subscribed to for any employee.
• An employer has paid in the insurance premium on an incorrect date.
• The salary has been too low due to systems errors at the employer in paying out saslaries.
• The employer has made a mistake as regards the salary level required in order that the premises for a work permit can be seen to be fulfilled.
• The employer has made a mistake regarding the terms applying in the industry in question or according to the standarsds of the collective agreement in effect. Valid absence from work on behalf of the employee has not been registered, which could give the impression that the salary requirement of being able to support oneself has not been fulfilled.

In order that the Migration Board, based on this change, is to be able to refrain from revoking a work period there is a requirement that the employer has corrected the error, that is, has been active in the circumstances at hand and has acted prior to the Migration Board discovering the situation and pointing out the error.

The Government has also appointed a committee to review the possibility of the Migration Board being able to refrain from revoking a work permit in the case the employer has corrected minor errors, even after the Board has identified and noted the weakness.

In a decision on 13 December, the Migration Court of Appeal overruled a Migration Board’s decision and a Migration Court’s decision in a case regarding the extension of work and residence permits. An individual had been denied extension of their work and residence permits when he, during a portion of the previous permit period, had a salary less than the collectively agreed upon salary level. After the mistake had been noted, the employer paid the applicable amount retroactively to the employee.

The Migration Court of Appeal is of the opinion that an all-inclusive assessment of the terms and conditions of employment should be made and that an assessment of the terms on a month by month basis is not possible. As there is no reason to doubt that the low salary amount was due to anything other than an administrative mistake on behalf of the employer, the Court concluded that the basic terms and conditions for a permit had been fulfilled during the previous permit period and that extension of the work and residence permits could, therefore, be granted.