Question on whether an alien applying for a permanent residence permit is qualified or not considering some absence from the labour force during his previous temporary work permits.

2020-05-03 i Migrationsrätt
FRÅGA
Work Permit Period - First - June 9, 2016 to January 31, 2018 (This was 4 months short due to my expiration date) Second - February 1, 2018 to February 1, 2020. Third - February 2, 2020 to June 9, 2020 (to fill the gap in 48 months) Details of work - First Job- 24 September 2016 to 30 April 2017. The second work started on 17 July 2017 and it is ongoing. with permanent job.In Feb 2020, Migration granted me 4 month extension to complete 48 month duration without any negative comment in decision. Now on June 9 2020, i am completing 48 month and on 30 April 2020 i have applied for Permanent residency.Note - on 15th April i resigned from the first job and i started my notice period. on 30 April i left sweden and went back to india to complete my notice period. (during this 2.5 month i was receiving salary in india From 1st May 2017 to 14th July 2017). On 15th July i landed in Sweden and started my new job on 17th July 2017 with new company in India. Now from 17th July 2017 to now i am working for same employer without any gap with all the insurance and salary as per migration rule.Question -1) All insurance and tax are paid as per migration rule and and also salary is above 36000 SEK. I have started 3.5 month late after receiving my first work permit. and also in 2017 i have gap of 2.5 month from (1st May 2017 to 15th July).I have a question Is there any problem with getting permanent residence ? As i have only worked for only 42 months in Sweden out of 48 month.
SVAR

Hello! Thank you for choosing Lawline.

Your question raises issues mainly regulated by the Swedish Aliens Act (In Swedish: Utlänningslagen (UtlL)). For the law in its entirety you have an English version here, but in the rest of my response I will be referring to the specific sections and paragraphs in the Swedish version of the law.

As I believe you have understood, there are several provisions in the Swedish Aliens Act which are relevant to your situation. I will divide my response to your question in several parts which one by one treat the different legal aspects of your question. First, I will describe the basic legal background relating to work permits and the possibility to, after having had several work permits for a period, obtain a permanent resident permit.

Work permits and the possibility thereafter to obtain a permanent residence permit

As you seem to have understood, an alien who has had a work permit for a total of four years within a period of seven years may apply for and receive a permanent residence permit (UtlL 5:5). So, in order to obtain such a permanent residence permit, you must have been working legally in Sweden under certain conditions which relate to a minimum standard (UtlL 6:2). This applies regardless if you came to work for a Swedish company directly or if you came through an intra-corporate transfer (ICT permit) (UtlL 6b:1).

Furthermore, after having had a temporary work permit for a total of four years within a seven years period, an alien must in principle apply and obtain a permanent residence permit, unless there are special reasons which justify another temporary extension for up to a maximum of six years in total (UtlL 6:2a). But as I have said, in order to obtain a permanent residence permit, you must have fulfilled the requirements for your temporary work permits to qualify for the permanent residence permit.

I will now move on to the issue of whether there could be problems for you to acquire a permanent work permit, considering the fact that you haven't been working for the entire 48 months.

Do you qualify for a permanent work permit, especially regarding the fact that you have worked 42 months out of your 48-month work permit period?

As you know, a work permit is granted with certain conditions relating to not only minimum standards of insurance and salary, but also relating to which type of job you can take and how much you must work. Therefore, I cannot say whether all of the relevant conditions are satisfied in your situation, but I will discuss whether or not it could be a problem that you have only worked 42 months out of your 48-month work permit period.

The Migration Court of Appeal (which is the highest court in migration cases) has in several cases demonstrated their method for appreciating whether or not an alien satisfies the conditions for a permanent work permit. First, we must admit that it is true that the six months of not working during your 48-month work permit period might be a problem, but it isn't necessarily a problem.

From what I am able to find, there is no specific limit on the number of months you need to have worked as a minimum during your temporary work permits. If the alien does not evidently fulfil all the conditions, the Migration Agency and the courts do an evaluation of the tie or connection that the alien has to the Swedish labour market. This evaluation is in the end decisive for the outcome. In this evaluation they consider inter alia the salary (the higher the better for the alien) and the amount of time the alien has been out of work during the duration of their work permit. If the time that the alien has been out of work is too much, the alien is not considered to have developed such a connection to the Swedish society and its labour market that a permanent residence permit can be granted, and the alien will thus be denied a new permit.

In your case, I understand that you have worked for more than an entire temporary work permit (more than two years), while fully satisfying the conditions for your work permit. You also seem to have been granted your latest temporary work permit after having had a period of absence from working. This means that the Agency must have reviewed your activity from before the latest permit (before 2018 and before 17th of July 2017), and yet, despite your absence from the labour market, granted you a new temporary work permit. These circumstances weigh in your favour and thus, in my perception, make it likely that they will grant you a permanent permit.

The Migration Court or Appeal has in for example MIG 2015:20 discussed and considered it to, in general, be allowed when an alien has a few months of absence and even some time of working in another country during the period of having a temporary Swedish work permit, which you have done. This also speaks in your favour. However, it is still not without a doubt that this will be granted to you. As I said, the Agency and the courts make an evaluation of the entirety of your situation and consider your ties to the labour market, and your 6-month absence from working speaks in your disadvantage and is probably on the higher end of what would be allowed. But that isn't decisive, and I still believe you will have a good chance of getting a permanent residence permit, especially considering your quite high salary.

I hope that my response is enlightening. If you have any follow-up question, you may send them to my email Joel.Herrault@Lawline.se.

Sincerely,

Joel Herrault
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