Sabbatical leave when on a work permit

2019-10-29 i Migrationsrätt
FRÅGA
Sweden allows full-time employees that work for more that 6 months to take six months off (as an unpaid leave) to start own business while they keep the seat with their employer in case it doesn't work out.How does it work for employees that have only the work permit but don't have Swedish citizenship? For example if an employee is from non-EU country, relocated to Sweden based on the full-time job offer from the Swedish company and lives in Sweden for less than 2 years. The work permit is associated with the employer and losing it generally means the requirement to leave the country.Are there any legal pitfalls or danger to be deported from Sweden if this person wants to open the business in Sweden by taking a 6-months sabbatical leave?
SVAR

Hi and thank you for posting a question to Lawline!

Labor Law

Firstly, I just want to clarify that the law Lag (1997:1293) om rätt till ledighet för att bedriva näringsverksamhet (translates to 'the law about the right for sabbatical leave to run a business") does not exclude any employees according to article 1. Hence, you have the right to apply for an unpaid leave to start your own business even though you are not a Swedish citizen.

You have the right to take an unpaid leave of 6 months maximum. Some requirements must be fulfilled:

You cannot compete with your employer's business (art 3) and your leave cannot constitute an inconvenience for the employer (art 3).You must have been employed the latest 6 months, or for a total of 1 year within the 2 last years (art 4). Moreover, You must apply at least three months in beforehand and report how long time you intend to take an unpaid leave and your employer has to respond within 1 month (art 5-6)

These are the rules in regards to labor law, and from your information it seems possible that you can apply for a sabbatical leave and then your employer has to accept your application if you meet all the requirements.

Migration Law

However, there are some issues concerning Migration Law.

The systems functions in this manner:

When obtaining a work permit, you will receive for the duration of your employment, but of maximum of 2 years. When the employment finishes or after 2 years you apply for an extension of your work permit. During this period (2 years in your case) you are not endangering your work permit (Swedish Migration Agency)

However, problems may occur after the 2 years period. To extend your work permit, you can take an unpaid leave to start a business, but only up to 2 months will be accepted. Hence, it is a danger to take a longer leave if you want to extend your work permit (Swedish Migration Agency)

To receive a permanent residence permit, parental leaves and sick leaves are more accepted than sabbatical leaves. In other words, your sabbatical leave may also affect your chances of obtaining a permanent residence permit negatively. (Swedish Migration Agency)

Summary

In sum, taking a sabbatical leave to start yourn own business constitues some legal "dangers" if you plan to stay in Sweden after the 2 years period is ended, but does not constitute a danger for the moment.

Follow-up

A follow-up via phone is included in your price. I will call you at 13:00 on Tuesday. Please let me know if this does not suit you. My e-mail adress is emil.duberg@lawline.se.

Emil Duberg
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