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IMMIGRATION

Landmark court ruling could stop deportations of foreign workers from Sweden over technicalities

Sweden's top court on migration cases has issued a landmark ruling which could put an end to the deportation of foreign professionals over minor errors in their work permits.

Landmark court ruling could stop deportations of foreign workers from Sweden over technicalities
Pizza chef Danyar Mohammed. Photo: Centre for Justice

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.

IN DEPTH: Why is Sweden deporting its foreign professionals?

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.”

READ ALSO: Spotify slams 'ridiculous' deportation threat faced by staff in Sweden

For members

WORKING IN SWEDEN

EXPLAINED: How do you apply for Sweden’s new ‘talent visa’?

From June 1st, non-EU citizens can apply to come to Sweden on the new talent visa or "resi­dence permit for highly quali­fied persons". These are the latest details on how to apply.

EXPLAINED: How do you apply for Sweden's new 'talent visa'?

Sweden’s “resi­dence permit for highly quali­fied persons to look for work or start a busi­ness” was voted through parliament in April as part of a set of changes to the country’s new work laws in April.

The visa was brought in as part of the January Agreement between the economically liberal Centre and Liberal Parties and the Social Democrat government. 

The basic form for the new talent visa was published when parliament voted it through: The visa allows non-EU citizens with a higher-level degree to apply for a visa of between three to nine months, which they can then use to stay in Sweden while they look for work or research setting up a new business.  

But the Migration Agency on June 1st published the details of what exact educational requirements are required to be eligible for the new visa, how much money applicants need to show they have to support themselves, and how and where to apply. They also published the form that needs to be filled in

What counts as an advanced-level degree and how do I prove it? 

The bar is set pretty low. To be eligible for the talent visa, applicants need to have a degree corresponding to at least a 60-credit Master’s degree, a 120-credit Master’s degree, a professional degree worth 60-330 credits, or a postgraduate/PhD-level degree.

You need to send copies of any examination certificates along with your application, as well as copies of the official transcript of your academic record, that shows the courses included in your education. 

If these documents are in a language other than English, French, Spanish, German, or a Nordic language, they have to be translated into Swedish or one of the above languages by an authorized translator.

You also need to print out, sign, scan, and send a letter of consent to the Swedish Council for Higher Education (UHR), allowing them to contact the educational institutions where you studied for your higher-level degree.

What financial assets do I need to show and how do I prove them? 

You must need to show that you have enough money (or a source of regular income) to support yourself during the time that you will be in Sweden, as well as enough to pay for your journey home. The Migration Agency judges that you need 13,000 kronor per month, so you need a lump sum of 117,000 kronor (€12,000). 

Source: Migration Agency

To prove that you can support yourself, you must either submit copies of your bank statements (plus a translated version if necessary). If you have another source of regular funding, you can explain in the ‘other’ box on what you intend, and enclose documents to support this.

What insurance do you need? 

You need to confirm that you have signed a comprehensive health insurance on the form, and also name the insurance company and the dates between which the insurance policy is valid. 

The insurance needs to cover the costs of emergency and other medical care, hospitalisation, dental care, and also the cost of repatriation for medical reasons. You need to enclose a copy of a document setting out the terms of your insurance policy. 

Source: Migration Agency

What do you need to write about your plans for Sweden? 

According to the Migration Agency, the visa is for people living outside the EU who “plan to seek employment or explore the possibilities for starting [their] own business”, but the form gives few guidelines as to what will count. 

In the form, there is a space for a few sentences in which you can say what sort of business you plan to start, or which sort of job you intend to look for, as well as whether you intend to leave Sweden, or apply for residency in another way if you fail to secure a job. 

Carl Bexelius, the Migration Agency’s Head of Legal Affairs, said that there was no requirement in the legislation that those with the new talent visa seek jobs that require them to be highly qualified. 

“The crucial part is that you have you are talented in a legal sense, that you have the appropriate education to qualify. If they find work, they can then apply for for a work permit, but that work does not need to require high qualifications.”

Other requirements? 

The other requirement is to have a passport that is valid for the full period in which you will be in Sweden. In the application you need to send copies of all the pages that show your personal data, photo, signature, passport number, issuing country, period of validity, entry stamps, and also if you have permission to live in countries other than your country of origin. 

How to apply? 

You need to send the application form, with the attached documents to the Swedish embassy or consulate-general in your country of residence, or, if that is not possible, at the embassy or consulate-general in the closest country. 

You should contact the embassy for information before applying, and to learn how large an application fee you will need to pay. 

What sort of permit will I get? 

If you get a permit valid for more than three months, you will get a residence permit card which features your fingerprints and a photo.

If you need an entry visa to come to Sweden, you will need to be photographed and have your fingerprints scanned at the Swedish embassy or consulate-general in your country of residence before leaving to come to Sweden.

If you do not need an entry visa, you can apply for a residency card, and have your photo taken and your fingerprints scanned, after your arrival in Sweden. 

What happens if I get a job or start a business while in Sweden? 

If you get a job while in Sweden, you can apply for a work permit from within the country. You cannot start work until the work permit is granted, though (which may not happen until after your talent visa has already expired). 

If you start a business in Sweden, you can apply for a residence permit as a self-employed person. You can start setting up and running your business even before the Migration Agency has made its decision. 

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