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‘I’m being deported because I didn’t take vacation, but Sweden is my home’

A restaurant worker who has lived in Sweden for five years has been ordered to leave the country because he didn't take enough holiday at a previous job. But his former employer assured him he was complying with Swedish rules, Ganesh Bista told The Local.

'I'm being deported because I didn't take vacation, but Sweden is my home'
Ganesh Bista with his wife and two children. Photo: Private

The 44-year-old first arrived in Sweden in 2013, and is currently working as a cook at a restaurant in Vänersborg, a town north of Gothenburg on the shores of Lake Vänern. His wife, who moved to Sweden a year after him, is a part-owner of the same restaurant and the couple have bought an apartment nearby. Their two children, aged nine and 13, attend the local school and have settled in to life in Sweden.

“I always thought Sweden was a nice country. I came here because I wanted to work, and it's my home now,” said Bista.

But in October 2017, more than a year after the family moved to Vänersborg, Bista's application to renew his work permit was rejected by the Swedish Migration Agency. In the decision, seen by The Local, the agency ordered Bista to leave Sweden for Nepal within just four weeks. 

The reason was that he had not taken sufficient annual leave during his employment in Stockholm, but the Nepali citizen says he was not aware of this regulation.

“In my contract, my boss told me that instead of taking holiday I had semesterersättning, so every three months I got extra money along with my salary,” Bista explained.

“I didn't have any idea I was supposed to take holiday, I would have been glad to take holiday,” Bista told The Local. “But everyone said that if you work more and pay more tax, that's a good thing, and my employer always said that they knew the rules better than us and they were doing things right.”

FOR MEMBERS: In depth: Why is Sweden deporting its foreign professionals?

The cook argues that he contributes a lot to Swedish society, both by working and paying tax and by integrating into the community in his new town. In his current job in Vänersborg, Bista says he has followed Swedish regulations on vacation allowance.

What's more, he says he has nothing to go back to if forced to return to Nepal. His children have settled in to Sweden and do not have friends in their birth country, while Bista and his wife sold their assets back home after a devastating earthquake in 2015.

He says that since receiving the rejection, his health has suffered. He has been diagnosed with diabetes, high cholesterol, and high blood pressure: “I will have to take medicine for the rest of my life now.”

Bista has appealed the decision at an administrative court, but his appeal was rejected. He is now working with a lawyer in the hope that the Migration Court of Appeal – which has the final say in such cases – will take up his case.

“Salary, insurance cover and other working conditions may not be worse than those in the Swedish collective agreement or the norm for the branch or industry,” wrote the Migration Agency in its initial decision.

In Bista's case, the agency observed that although the holiday supplement (semesterersättning) had been paid regularly, no time off had been taken. It said therefore that the rejection was due to the fact “your employer cannot be considered to have fulfilled the employment conditions that were agreed to in the employment offer and on the basis of which your earlier permit was approved”.

The agency also said in its initial decision that Bista had not provided sufficient proof of the correct insurance cover; he told The Local that after re-submitting documents from his insurance provider, he was told these were in order but his application would still be rejected due to the lack of holiday.

When contacted by The Local, a press officer at the Migration agency said she could not comment on individual cases, but noted that all employment contracts should follow the Swedish law regulating annual. “Unfortunately, even if he was not aware of this law, he has to check and follow the rules,” she said.

READ ALSO: Should employers be asked to compensate deported workers?

As The Local has reported previously, many of Sweden's foreign professionals have faced hurdles in getting work permits extended – despite significant sectors of the Swedish economy relying on international talent.

In a judgment last December hailed as a success for foreign workers, Sweden's Migration Court of Appeal ruled that work permit decisions should be made on an overall assessment of each case, rather than allowing small mistakes that employers had tried to rectify lead to automatic rejection.

Since then, there have been several individual victories: an Iraqi man facing deportation for failing to take sufficient holiday was allowed to stay in Sweden, and a Syrian computer programmer was able to return to her Stockholm job following her deportation to Greece.

But others have still had their permit extensions rejected over apparently minor errors. An MP submitted a formal parliamentary question about the issue after The Local wrote about the case of a sales engineer facing deportation because a previous employer had made an error over his health insurance.

READ ALSO: How Sweden's deportations of skilled workers are affecting internationals

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For members

WORK PERMITS

What are my rights while I wait for my Swedish residence permit to be extended?

Many foreigners living in Sweden need to have a residence permit to live in the country legally. Permits are issued for two years at a time and can be renewed 30 days before expiry, at the earliest. But with waiting times exceeding 8 months for many applicants, just what are your rights while you wait to hear back?

What are my rights while I wait for my Swedish residence permit to be extended?

Can I keep working in Sweden?

It depends. If you have a residence permit which allows you to work in Sweden, have held that residence permit for at least six months and apply for an extension before your old permit expires, you still have the right to work in Sweden while you wait for the Migration Agency to make a decision on your permit application.

You can apply for a new residence permit 30 days before your old permit expires, at the earliest, and you can’t get a new residence permit before your old one has run out.

Can I leave Sweden?

Technically you can, but it might not be a good idea. This is due to the fact that if you leave Sweden after your residence permit has expired, it can be difficult to enter Sweden again before your new permit is granted, even if you can prove that you’ve applied for a new one.

In the worst-case scenario, you could be denied entry to Sweden at the border and forced to wait in another country until your new residence permit is granted. 

If you find yourself in this situation, you can, in some cases, apply for a national visa allowing you to re-enter Sweden. These are only granted under exceptional circumstances, and must be applied for at a Swedish embassy or general consulate in the country you are staying in. If you are not granted a national visa to re-enter Sweden, you can’t appeal the decision, meaning you’ll have to wait until your residence permit is approved before you can re-enter Sweden.

The Migration Agency writes on its website that you should only leave Sweden while your application is being processed “in exceptional cases, and if you really have to”.

It lists some examples of exceptional cases as “sudden illness, death in the family or important work-related assignments”, adding that you may need to provide proof of your reason for travelling to the embassy when you apply for a national visa to re-enter Sweden.

What if I come from a visa-free country?

If you come from a visa-free country, you are able to re-enter Sweden without needing a visa, but you may run into issues anyway, as visa-free non-EU citizens entering Schengen are only allowed to stay in the bloc for 90 days in every 180 before a visa is required.

If you are a member of this group and you stay in Schengen for longer than 90 days without a visa, you could be labelled an “overstayer”, which can cause issues entering other countries, as well as applying for a visa or residence permit in the future.

The Migration Agency told The Local that “a visa-free person waiting for a decision in their extension application can leave Sweden and return, as long as they have visa-free days left to use”.

“However, an extension application usually requires the individual to be located in Sweden,” the Agency wrote. “Travelling abroad can, in some cases, have an effect on the decision whether to extend a residence permit or not, in a way which is negative for the applicant, but this decision is made on an individual case basis (it’s not possible to say a general rule).”

“The right to travel into the Schengen area for short visits is not affected, as long as the person still has visa-free days left.”

The Local has contacted the Migration Agency to clarify whether days spent in Sweden count towards the 90-day limit, and will update this article accordingly once we receive a response.

Does this apply to me if I have a permanent residence permit?

No. This only applies to people in Sweden holding temporary residence permits. If you have a permanent residence permit and your residence permit card (uppehållstillståndskort or UT-kort) expires, you just need to book an appointment at the Migration Agency to have your picture and fingerprints taken for a new card.

How long is the processing time for residence permit renewals?

It varies. For people renewing a residence permit to live with someone in Sweden, for example, the Migration Agency states that 75 percent of recent cases received an answer within eight months.

For work permit extensions, it varies. In some branches, 75 percent of applicants received a response after 17 months, others only had to wait five.

This means that some people waiting to extend their residence permits could be discouraged from leaving Sweden for almost a year and a half, unless they are facing “exceptional circumstances”.

You can see how long it is likely to take in your case here.

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