Valid residence permit as a requirement for a new permit

2021-11-27 i Migrationsrätt
FRÅGA
I did my first permit residence through doctoral studies (2 years) then I applied for a permit through marriage, while my visa was valid, while doing doctoral studies in Sweden. The application was done 12 months before my visa expired and in the 14th month (with an already visa expired) I receive a letter from migration office that I can only apply being in my home country. And my visa expired 3 weeks before I received that letter. My question is:1. Is it mandatory that I go back to my home country even tho I am still doing my phd studies and I have my life in Sweden (for applying to a residence permit through marriage) ? 2. Can I extend the residence permit through doctoral studies while being in Sweden (and with a visa that just expired while other application was running)? My case has not been closed yet
SVAR

Hi!

Thank you for turning to Lawline with your question.

Introduction
As I understand your question, you first got a residence permit for your doctoral studies. During your residence permit for your studies, you applied for a permit through marriage. Your residence permit was thus valid during your application. Now the migration office, that is Migrationsverket, tells you that you have to be in your home country when applying for your residence permit through marriage. Now you wonder for the first (1.) if this is true, that is that you have to be in your home country when applying for your residence permit through marriage, and for the second (2.) if you are able to extend your residence permit through doctoral studies while still being in Sweden, even though it is now expired.

Your case
The main rule is that you have applied and have gotten your residence permit accepted before you travel to Sweden (ch. 5, 18 §, sect. 1 utlänningslagen). However, there are certain cases when you may be able to receive your residence permit without having to leave Sweden. This is possible, inter alia when you already have another valid residence permit. This is applicable, inter alia when you have a permit for studies and have completed (at least) one semester of postgraduate studies in Sweden (ch. 5, 18 §, sect. 2 p. 9 utlänningslagen). This should, therefore, be applicable in your case. However, as I mentioned before, there needs to be a valid residence permit. The question here is, does your residence permit count as valid when it was valid at the time of your application, even though it is not valid anymore. The rule is that the residence permit has to be valid when you submit your new application.

Since your residence permit for your doctoral studies indeed was valid at the time of your application for your residence permit through marriage, this means that:

1. You do not have to travel back to your home country to apply for your residence permit

2. You can not extend your residence permit through doctoral studies while being in Sweden, because of your expired residence permit

I advise you to tell Migrationsverket that since you had a valid residence permit at the time when you submitted your new application, you do not have to travel back to your home country to apply again. You have already submitted your application, and this, according to the rules.

Hope you got an answer to your question! If you find that something in your question is unanswered or that my answer is indistinct in any way, feel free to contact me via e-mail. You may reach me at anton.blomqvist@lawline.se.

Kind regards,

Anton Blomqvist
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