Work permit rules complicate cross-border commuting for non-EU citizens

Thousands of people commute between Denmark and Sweden every day, living in one country and working in the other, and it's a lifestyle the Öresund region is actively trying to promote. But for non-EU workers, the migration law makes things difficult.

Work permit rules complicate cross-border commuting for non-EU citizens
The Öresund Bridge linking Denmark and Sweden makes travel between the two countries quick and easy, but non-EU citizens face hurdles. Photo: Johan Nilsson / TT

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.

READ ALSO: What it's like living life on both sides of the bridge

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.”

OPINION: Danish odds are stacked against skilled foreign workers

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EXPLAINED: What do we know so far about Sweden’s new ‘talent visa’?

In the new work permit law which comes into force on June 1st, Sweden is launching a new nine-month 'talent visa', which will allow “some highly qualified individuals” to get temporary residency while they look for jobs or plan to launch a business. What do we know so far?

EXPLAINED: What do we know so far about Sweden's new 'talent visa'?

When was the law passed and when does it come into force? 

The parliament passed the new law on April 21st, and the final text of the change in the law was published on May 5th. It will come into force on June 1st. 

What does the new law say about the ‘talent visa’? 

It says that “in certain cases”, a temporary residency permit can be granted to a foreigner who wants to “spend time in the country to look for work or to look into the possibility of starting a business”. 

To qualify the applicant must: 

  • have completed studies equivalent to an advanced level degree 
  • have sufficient means to support themselves during their stay and to cover the cost of their return trip 
  • have fully comprehensive health insurance which is valid in Sweden 

How long can people initially stay in Sweden under the talent visa? 

The residency permit will be valid for a maximum of nine months.

Which agency will assess applications for the talent visa? 

The government has decided that applications should be assessed by the Migration Agency. The Migration Agency will publish more details on the requirements, such as what qualifies as an advanced degree, what documents need to be submitted, and how much capital applicants will need to show they can support themselves, in the coming weeks. 

The Migration Agency is also likely to develop a form for those wishing to apply for the talent visa. 

What level of education is necessary? 

What is meant by an “advanced degree” has not been set ou in the law, but according to Karl Rahm, who has helped draw up the law within the Ministry of Justice, a master’s degree (MA or MSc), should be sufficient. 

How much capital will applicants need to show that they have? 

According to Rahm, the amount of money applicants will need to show that they have is likely to be set at the same level as the minimum salary for those applying for a work permit, which is currently 13,000 kronor a month. If he is right, this means that someone applying for a nine-month visa would have to show that they have 117,000 kronor (€11,259) in saved capital, plus extra for their trip back to their home country.

READ ALSO: How will the new work permit law just passed in Sweden affect foreigners?

Can applicants bring children and spouses? 

“You will not be able to bring your family with this kind of visa, since the idea is that it’s for a relatively limited amount of time,  just to see if there is employment for you, or if there is a chance of starting a business,” says Elin Jansson, deputy director at the Ministry of Justice, who helped work on the new visa. “And if you do decide to stay in Sweden, then you apply for a regular work permit for starting up a business, and then you can bring your family.” 

Where will detailed information on the requirements for a talent visa be published? 

The Migration Agency will publish detailed requirements on the talent visa on its Working in Sweden page when the law starts to apply on June 1st. 

What is the reason for the talent visa? 

Those searching for a job or researching starting a new business in Sweden can already stay for up to 90 days with a normal Schengen visa. The idea behind the talent visa is to give highly educated foreigners a little longer to decide if they want to find a job or set up a business in the country before they need to go the whole way and launch a company. 

How many people are expected to apply? 

In the government inquiry on the new work permit law, experts estimated that about 500 people would apply for the new talent visa each year, but it could end up being either much more, or less. 

“It’s really hard to tell. There could be a really big demand. I don’t think it’s anyone can really say before this comes into effect,” Jansson said.