According to a document the Migration Agency sent to the European Commission earlier this year, 2,096 people have had applications for post-Brexit residency rejected, of whom 1,607 applied on time and 489 applied after the deadline for applications on December 31st 2021 had passed.
Of the people who applied on time and were rejected, the most common stated reason for rejection – applying in 623 cases – was that they were not judged to have fulfilled the requirements for a right of residency, or uppehållsrätt, under EU law.
According to two EU lawyers The Local has spoken to, the agency has tended to take a stricter line than other EU countries on what is required to fulfil the requirements for a right of residency on what constitutes "reasonable grounds" for a late application, and on how to apply a "proportionality" test to its decisions.
"I would say that the Swedish Migration Agency has a very formal, strict approach," Fabrizio Vittoria Beijer, a lawyer with Momentius LPA who previously worked within the Migration Agency, told The Local. "It is difficult for the migration officers to navigate EU law, in particular when it comes to applying it to very specific circumstances that might require a more in-depth assessment."
He said that his firm had had several cases, some Brexit related, where case officers had in his view misapplied European law.
"We work a lot with European law, and we are still struggling in some cases where European law is not applied in the correct way because of a lack of knowledge," he said.
Strict criteria on who qualifies for post-Brexit residency
In the first group of cases – those rejected despite applying on time – Vittoria Beijer and another lawyer The Local spoke to said that Migration Agency case officers sometimes appeared to misunderstand the requirements for EU right of residency.
Under EU freedom of movement rules, there are no residency requirements for the first three months, and after that you need to be employed and registered at an address. But Vittoria Beijer said that under EU law, the definition of "employment" is quite broad.
"The employment and remuneration that European citizens are supposed to receive [to qualify for a residency right] is much, much, much lower than the requirement if you apply for a normal Swedish work permit or for family reunion," he said.
There is, he said, no minimum salary requirement and no requirement to work a minimum number of hours.
"It doesn't matter if you work full-time or part-time, or have temporary work where you work one month and then you finish and then you work one month again. And the remuneration is irrelevant so long as you can support yourself," he said.
The key test, he said, is that the work cannot be "ancillary and marginal".
There had been one case in the European Court, he added, where someone had been judged to qualify for residency despite only working five hours a week, and another where a worker for a religious organisation was judged to qualify despite receiving no remuneration whatsoever.
"He was providing services to the church where he was working in a very regular way. And the European Court of Justice said that this was enough."
It is only those who have no employment whatsoever, he continued, who needed to show that they had sufficient funds saved up to support themselves.
"It the person is not working, then the person will have to show that they have sufficient means as well as insurance," he said.
"There are absolutely no minimum requirements. You have to show that you are able to support yourself, and you don't even have to have the sufficient means yourself. It can be that there's someone else supporting you with the money. You can show that you receive in a regular way a certain amount of money, for example, let's say 10,000 or 15,000 Swedish kronor per month, which will be enough to support yourself."
Another EU lawyer The Local spoke to, who did not want to be identified, said that in several cases he had been involved with, Migration Agency case officers appeared to apply the stricter försörjningskrav, "subsistence requirement", that applies to residency applications under Swedish law, for example for those applying for work permits.
"They have kind of been infected by the recent changes in the legislation on försörjningskrav, the kind of tightening up that's come from the parliament," he said.
Strict judgement on late applications
In the Withdrawal Agreement the UK signed with the EU, members states are asked to consider whether those who missed the deadline had "reasonable grounds" to have a late application granted, and also requires late applications to be judged "in proportionate manner".
In a document on the treatment of late applications sent by the Migration Agency to the Commission, Sweden's Migration Agency appears to argue that anyone who was not aware of the deadline for applying for post-Brexit residency is automatically disqualified from having reasonable grounds for a late application.
According to the EU lawyer the Local spoke to, this approach has been supported by Sweden's migration courts.
"The courts have applied a rule that all British citizens have a strict personal responsibility to keep themselves apprised of all changes in immigration rules, meaning that if it turns out that they weren't aware of the need to apply within time for post-Brexit resident status under the withdrawal agreement, that, in itself, automatically disqualifies them for having any reasonable grounds for applying late," he said.
Vittoria Beijer conceded that this went back to the Roman era maxim ignorantia juris non excusat: "ignorance of the law is no excuse".
"This is, of course, a very old principle in the legal system. But this is a very specific situation and it would not have been a big effort from the Swedish Migration Agency to send a notification to British citizens informing them about what rights and obligations they might have according to the Withdrawal Agreement."
Ignoring Britons' right to residency for reasons other than post-Brexit status
The EU lawyer said that Sweden's migration authority had frequently not considered whether a UK citizen might have a right to residency in Sweden for a reason other than those stipulated in the UK Withdrawal Agreement.
They have instead tended to assume, he said, that any British citizen, who by January 1st 2022 had not applied for either a residence permit under Swedish law, or residence status under the withdrawal agreement, was automatically illegally in Sweden.
But Vittoria Beijer said that under the Withdrawal Agreement, the agency was supposed to go further than this.
"Article 18 says that even if the UK citizens do not apply for resident status within the deadline, the agency is obliged to conduct an assessment of their situation. The agency is obliged to to conduct a very in-depth assessment about the personal circumstances – the family ties and the work conditions of British citizens in Sweden. So they cannot just reject because you haven't applied for resident status within the deadline."
Not assessing whether refusal of residency is 'proportionate'
The Migration Agency and migration courts, the lawyers told the Local, also often appeared to ignore the requirement under the Withdrawal Agreement that decisions to refuse post-Brexit residency be "proportionate".
In the EU Withdrawal Agreement, it states that all those refused residence status should have access to "judicial and, where appropriate, administrative redress procedures".
These redress procedures, it says, "shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate."
Vittoria Beijer said that the proportionality test suggested British citizens with close ties to Sweden, especially those with young children, should not be refused residency even if they missed the deadline.
"We are maybe talking about a father with small children. You should consider those specific circumstances in order to see whether a rejection based on the fact that you didn't apply within the deadline will be proportionate to the fact that the person will need to leave these small children behind in Sweden."
He said that in such a case, it seemed to him that refusing residency would not be proportionate.
The Local is arranging an interview with Carl Bexelius, the Migration Agency's Head of Legal Affairs, to clarify the agency's position on the legal issues surrounding post-Brexit residency.
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