The Swedish Migration Court of Appeal ruled that the Migration Agency should make assessments based on an overall assessment of an individual case, and that small errors should not automatically lead to expulsion.
It was ruling in the case of Danyar Mohammed, an Iraqi pizza chef who has lived and worked in Jokkmokk, northern Sweden for eight years.
As The Local previously reported, Sweden's Migration Agency ordered him to leave the country last spring, because he had been paid 460 kronor (about $55) below the minimum monthly salary agreed in a collective agreement – a set of working conditions including salary and hours which are agreed between employers and trade unions.
These agreements are regularly updated, and Mohammed's employer didn't notice the latest adjustment for a few months, raising Mohammed's salary and compensated him for the back pay immediately when he did. But in the eyes of the Migration Agency this made no difference, and the 28-year-old chef became one of hundreds of foreign workers in many sectors who have been expelled for small mistakes not made by them.
"The decision on expulsion is lifted and Danyar Mohammed is granted residence and work permit for two years from now," the judgment overturning the Migration Agency's decision read, stating that an overall assessment of Mohammed's stay in Sweden suggested he had met the conditions of his work permit.
"This judgment is not only a victory for Danyar, but for all work permit holders who are facing deportation because of minor mistakes made by their employers," Fredrik Bergman, Chief Legal Counsel at Sweden's Centre for Justice, a non-profit public interest law firm which helped Mohammed appeal, told The Local.
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Like many of the work permit holders who have been ordered to leave the country, Mohammed is well integrated in Sweden, He speaks Swedish, is well-known in Jokkmokk, and volunteers at a local accommodation centre for asylum seekers.
"I am so pleased that I can continue living and working in Sweden. Now I'm one step closer to my dream of opening my own restaurant in my beloved Jokkmokk," Mohammed said in a statement.
Campaigners have been pushing for Sweden to update the way work permit assessments are carried out following hundreds of cases like Mohammed's, which have had a particularly strong effect on the country's growing tech sector which has seen "world-class" developers deported over minor mistakes. Several employers have told The Local this is also having an impact on hiring, with workers less willing to move to Sweden when they feel they would face an uncertain future there.
Over 1,500 work permit extensions were rejected last year and though it's hard to say how many were refused over technicalities, the figure has almost doubled from the previous four years.
Some progress has been made already: a new law change aimed at tackling the problem of work permit deportations came into force earlier this month, but this was widely criticized for not going far enough. Under the new law, foreign workers could avoid deportation only if mistakes in their paperwork were corrected before being picked up by the Migration Agency. Because the errors are often very minor, or may be impossible to correct retroactively, this would leave many cases unaffected.
The government has also ordered an inquiry to suggest alternative legislation to deal with the limits of this proposal and ensure that decisions on work permits are made using a 'principle of proportion'. That report is due to be presented by the end of the year, but any legislative change from that report is unlikely to come into effect before summer 2018.
However, the judgment in Mohammed's case – the first case relating to work permit extensions to go before the Migration Court of Appeal since 2015 – could have an immediate effect on how the Migration Agency deals with these cases.
"The Court's new guidelines goes into effect immediately. The Court holds that the Migration Agency cannot automatically deport a work permit holder because of a mistake, but need to make an overall assessment of all work conditions," explained Fredrik Bergman from the Centre for Justice. "This judgment gives new guidance to the Migration Agency and the lower courts, and improves the legal standing for hundreds, potentially thousands, of work permit holders."
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