American communications professional James Tierney moved to Denmark in 2012, where he lives with his wife and two children, and for the past four and a half years has worked in the southern Swedish city of Lund.
When his company applied for a renewal of his work permit in May this year, however, it was rejected on the grounds that Tierney does not live in Sweden. The decision is currently under appeal in the Malmö administrative court. If the decision is upheld his contract will be terminated with immediate effect.
“You are not resident in Sweden, but in Denmark, and travel to Sweden every day by train,” reads the decision, seen by The Local. “[…] Since you have already been in Sweden for more than three months, you are required to have a residency permit. Since you do not have a residence in Sweden you do not have a right to a residency permit and therefore the Migration Agency cannot approve your work permit.”
Tierney was surprised by this, since it had not been an issue for the first four years in the job. In fact, he is employed by the European Spallation Source (ESS), a pan-European project to build and operate a large-scale scientific research facility. Under construction in Lund, the facility is co-hosted by Denmark and Sweden and is frequently held out as a model of successful cross-border collaboration.
Scheduled to go into operation in 2023, ESS has already helped lobby for an amendment to Danish law which allows scientific researchers offered employment at ESS to receive a residence and work permit in Denmark if they are eligible for a Swedish work permit.
Nordic and EU residents have the ability to live in one country in the region and commute to another for work, but for those without EU citizenship this is much harder.
Øresunddirekt is an information centre for cross-border commuters, but a press spokesperson told The Local they could not provide information about what rules apply to non-EU workers in this position. “If you are from an EU country you can commute without a problem but if you are from a third country you need the Migration Agency's permission. If someone is not happy with the decision, they need to appeal the decision,” he said.
“In order to work in Sweden, you need a Swedish work permit, even if the employee is resident in Denmark and has a residence and work permit,” explained Mardin Baban from the Migration Agency's press office when contacted by The Local.
Baban could not comment on any individual cases, but said that it is possible for workers living in Denmark to get the permit under the same conditions as those planning to live in Sweden – for example, the job must have been advertised within the EU and the pay and benefits must be in line with the average for the profession. But he added that there are time limits.
Temporary work permits (arbetstillstånd) can be given out for a maximum of two two-year periods. After four years, employees can renew it again for a further two years, but only if “special circumstances” apply, which typically means that they plan to become a permanent resident of Sweden, in which case they apply for permanent residence (permanent uppehållstillstånd) and must live in Sweden.
“There were no issues with my permit over the last four years, and I was not prepared to encounter any issues with the 2018 renewal. I was working on a permanent contract and had never lived in Sweden, had no intention to move to Sweden, and never expected that I would suddenly be required to do that in order to keep my job,” Tierney tells The Local. “When I first applied, it wasn't difficult: I got the offer and a contract, and a relocation agency walked me through the process of getting a work permit, which was straightforward, and I renewed that twice.”
“My employer helped me write an appeal to the decision, but they didn't really see anything that could be done to allow me to keep my job. The solution would be to rent an apartment in Sweden during the week or to move here, but as a non-EU citizen already settled in another EU country, that's full of lots of risks, expenses and other difficulties,” Tierney explains.
He is not yet eligible to apply for permanent residency or citizenship in Denmark, where he hopes to live long-term: “The laws in Denmark are quite strict, so the minute I no longer reside in Denmark, I'd lose a lot of the rights I've accrued over time here and would have to start from scratch in terms of eligibility for permanent residence and citizenship. With two Danish children and a Danish wife, I've got a lot at stake.”
“The rules around who can live in Denmark and work in Sweden, and for how long, must be a question for a lot of employers and my situation came as a surprise to us. The policy is confused and confusing.”