New guidelines on permanent residence periods
The Migration Agency has recently published a new legal position paper that gives the Agency new internal guidelines on calculating the total work permit period for individuals eligible for permanent residence. This might affect employees who are reaching their four-year work permit limit and therefore coming up for permanent residence.
As per Chapter 6 Section 2 a, Aliens Act (Swedish Code of Statutes (2005:716)), an individual cannot be granted a work permit for more than a total period of four years, with the exceptions of special circumstances like the need to finish a temporary assignment or project (maximum of six years within a seven-year period). Under Chapter 5 Section 5, Aliens Act, a permanent residence permit can be granted to an individual who during the last seven years has had a work permit in Sweden for a period of four years.
Previously, individuals who did not qualify for permanent residence post the four-year work permit period could leave Sweden for a few of months and apply for a new temporary work permit, a sort of "cooling off period". However, this has not been consistent with Chapter 5, Section 5, Aliens Act, and as such the Migration Agency has issued a new legal position paper confirming that this is no longer possible.
According to the legal position paper, if an individual reaches four years of work permit in Sweden during the last seven years and does not fulfill the permanent residence criteria, they will need to leave Sweden for at least three years before re-applying for a new work permit.
If, however one or more of the four years of work permit are more than seven years ago, the individual can be granted a continued temporary extension of his or her work permit. The seven-year period is calculated from the date the Migration Agency makes their decision, as this is assessed to be the most advantageous for the individual.
The ICT permits (Intra-Corporate Transfer) are not included in the total, which means that such a permit may be granted even if the individual has already had a work permit for four years during the past seven years.
The legal position paper does not refer to extension applications where an individual has stayed less than four years in Sweden. Nor is there anything stipulated in the law or in the legal guidelines regarding this. The Migration Agency unit processing all certified applications has an internal guideline, whereby, as a rule of thumb, a "cooling-off period" should be at least six months. Nonetheless, what the Migration Agency will assess is whether the individual still has ties to Sweden. Consequently, if the individual is assessed to have any ties to Sweden, such as having an apartment in Sweden or working for the same employer abroad, this could result in the six-month "cooling-off period" being insufficient. If they are assessed to have left Sweden, taken up a new employment and re-settled in another country, six months or less could be considered enough.
If you have any employees who are reaching the four-year work permit limit and therefore coming up for permanent residence which you think might be affected, please reach out to EY for advice and guidance on the best course of action.
José Vaz and Elsa Tirén
Read the legal position paper (in Swedish): SR 16/2019
José Vaz
Elsa Tirén