What's happening?
From April 1st, a law which allowed rejected asylum seekers to apply for a work permit without having to leave Sweden (provided they had been employed for at least four months and met all the other requirements for a work permit) will be abolished.
This not only affects future rejected asylum seekers who might want to change to a work permit, but also those who have made the change in the past and are currently living and working in Sweden – but will after April 1st not be able to extend their current permit.
The Local spoke with the Migration Agency's deputy task manager for work permits, Hanna Geurtsen, to help explain exactly who is affected and what it means for them.
Who's affected?
Everyone who is on a temporary work permit which they switched to after their asylum or protection application was rejected via the so-called spårbyte ("track change") option.
But, and this is important, you need to check the original decision to grant you a work permit to see which legal paragraph the Migration Agency based its decision on.
If the decision was based on chapter 5, paragraph 15a in the Swedish Aliens Act (utlänningslagen) this means you were granted a work permit under spårbyte rules – which means that you may not be able to extend your permit once it expires. You should be able to see in your original decision what paragraph was used to grant you a work permit.
However, Geurtsen told The Local that the agency has in some cases of former asylum seekers granted a work permit under standard work permit rules – so if your decision was based on another paragraph than 5:15a, you're not affected by the scrapping of spårbyte.
How many people are affected?
The Migration Agency estimates that around 4,700 people living in Sweden will be affected by the abolition of track changes, which will not only force former asylum seekers who have used this option to leave the country, but also their families.
Around 1,400 of the 4,700 people are family members, according to the Migration Agency.
There are today around 2,200 valid spårbyte permits and around 2,500 open applications.
Those affected can stay in Sweden until their current permit expires – they don't have to leave exactly on April 1st.
Why do those affected have to leave Sweden?
Normally, the rule of thumb is that work permit applicants have to apply from abroad. That goes for everyone (or most, as there are exceptions), not just former asylum seekers.
In 2008, the centre-right government at the time introduced an exception for people who had arrived as asylum seekers, had their asylum application rejected but were by then gainfully employed. This allowed them to apply for a work permit from within Sweden.
That's the exception that's now being scrapped.
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If you're wondering why it's affecting people who have already made that change, then to generalise you could put it like this: once a track changer, always a track changer.
When the Migration Agency looks at whether or not to award applicants a work permit extension, they look at under what legal paragraph they received their current permit. If that paragraph was 5:15a, which from April 1st will no longer exist, they can no longer grant them an exception from the rule that you have to apply for a work permit from abroad.
That generally means they'll have to leave Sweden and apply from abroad instead (see below for other possibilities).
No transitional rules were proposed by the government (despite the urging of experts) which means that even many people who changed tracks in the past are affected.
What about permanent residency?
If you already have permanent residency, you're not affected.
If you have applied or are about to apply for permanent residency, this affects you too, unless you happen to get a decision before April 1st. But if you haven't received a decision by April 1st, your application for a permanent residency permit may well be rejected.
Is there really no chance of staying?
Maybe, but it's extremely complicated. We'll try to explain.
The Migration Agency has said that it will look at whether there are other reasons why people may get to stay, or whether it's possible that they could qualify for exceptions.
In this case, it matters whether the deportation decision people received when their asylum was rejected is still active and valid or has expired, so look this up if you're affected.
"For the individual, it will be crucial whether or not you have a deportation order which is still valid on April 1st," said Geurtsen, saying this factor hugely affects how many liberties the agency can take.
If the deportation decision is still active, the Migration Agency could issue a so-called verkställighetshinder – "impediment to enforcement", or in other words permits issued to people who have been ordered to leave Sweden but can't, for example if their home country refuses to accept them. But note that the criteria for a verkställighetshinder are extremely narrow, so the chances of receiving one are very small.
If the deportation decision has expired (i.e. if more than four years have passed since the decision gained legal force), the odds of staying look better.
If the applicant does not have a deportation order against them that is still valid by April 1st, and has other grounds for a permit (such as family ties, employment or similar), they can apply for that permit at the same time as applying for permanent residency if they meet the requirements. The Migration Agency will then assess whether or not they can receive permanent residency.
"If you've been here, so that you qualify for a permanent residency permit and your deportation decision has expired, we can consider and possibly grant a permanent residency permit," Geurtsen confirmed.
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If the agency finds the applicant doesn't qualify for permanent residency, they will then in the next instance look at whether or not there is a reason for why he or she can get a permit extension with an exception from the rule that you have to leave Sweden to have your application tried.
Such exceptions could for example be that an applicant has lived in Sweden for many years, and perhaps has children who have also lived in Sweden for many of their formative years. It's important to note that none of this is a certain guarantee that you'll be granted an exception. In the end, the Migration Agency will look at everyone's individual situation, so it's not possible to say a clear "yes" or "no" in this article.
"We will look at all the circumstances. But for a fair number it will probably end with us noting that yes, there's an employment contract, it meets the conditions, but there are no reasons to make exceptions and you have to leave the country in accordance with your deportation order to apply for a new residency permit from abroad," said Geurtsen.
She told The Local that the agency has little "room to manoeuvre" when it comes to following the law laid out by the government and parliament, but conceded: "It's tough for an authority to have to make new deportation orders for people who before a law change probably would have received a positive decision and an extended work permit."
"Our challenge now is to reach all those affected in order to be able to give them the correct information, as these are people who are already in a system and have ongoing valid residency permits."
If I lose my right to stay in Sweden, will I be able to return?
Yes, at least in theory. You can apply for a new Swedish work permit as soon as you've returned to your home country or another country where you have the right to stay.
The problem is that it will be considered a new work permit, not an extension, which means that you'll have to go through all the steps from the start. In the worst-case scenario your employer may have to re-advertise your position to meet all the requirements.
But as long as you follow your deportation decision and leave Sweden on time when the Migration Agency tells you to, you don't risk receiving a ban on returning, which means you can come back on a new work permit even if you still have an active deportation decision.
"The time you've spent here working can be taken into account in a future application for a permanent residency permit," said Geurtsen.
"The key thing that you have to avoid is getting a ban on returning. If you get a ban on returning it normally applies to the entire Schengen area for a certain period of time, and having a job in Sweden is usually not enough to revoke such a ban."
Why is this happening?
It's part of the government's flagship "migration paradigm shift" which the three right-wing coalition partners agreed together with the far-right Sweden Democrats in the so-called Tidö Agreement, which was struck after Sweden's general election in 2022.
One of the aims is to limit asylum migration in particular, and spårbyte has been accused of attracting people who apply for asylum despite knowing they're not actually eligible.
"It is crucial for maintaining trust in our migration system that those who have received a deportation order also leave the country. These proposals reduce the incentives to remain in Sweden following a deportation order," said Migration Minister Johan Forssell in a statement when the government presented the bid to scrap track changes by April 1st.
PETITION:
Abolishing track changes was originally part of a major legislative package to reform Swedish work permits, and was meant to come into force in June together with the rest of the reforms. But then it was included in a separate bill, which was sent to relevant organisations and agencies for consultation in February, and fast-tracked with the start date moved forward to April 1st. It was approved by parliament on March 12th.
The Council on Legislation – the parliamentary body that scrutinises bills before they go before parliament to ensure they are in line with the constitution – had urged the government to consider transitional rules before moving forward with the reform.
"From an equal treatment perspective, the Council on Legislation questions the appropriateness of allowing an authority's processing times to be decisive for whether an application should be processed according to the new or older wording," it wrote.
But the government overrode the criticism, arguing that the purpose of abolishing track changes was to create greater incentives for those with deportation decisions to leave Sweden. "[I]t is important that the new rules quickly have an impact," it wrote in the bill.
This article was written by The Local and has been fact-checked by the Migration Agency.
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