Sweden – Court Clarifies Income Requirement for Permanent Residence Permit Applicants - KPMG Global (2024)

Sweden – Court Clarifies Income Requirement for Permanent Residence Permit Applicants - KPMG Global (1)

GMS Flash Alert 2024-025

GMS Flash Alert 2024-025

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Article Posted date26 January 2024

3 min read

In December 2023, the Swedish Migration Court of Appeal1 (Migrationsöverdomstolen) redefined the “certain duration” requirement for employment-based income for permanent residence permit applications. Under the new interpretation, an applicant´s income may be considered to have a certain duration if he or she is employed for at least a year or if there is a likelihood, based on employment history, that the employment will be renewed beyond a year.

This represents a notable change from the previous stance of the Migration Agency (Migrationsverket), which insisted that an individual should have an employment lasting at least 18 months to meet the “certain duration” criterion.

WHY THIS MATTERS

The decision is particularly favourable for individuals with consistently renewed, albeit shorter, employments – ensuring legal predictability and consistency. This new case law could be instrumental for ongoing appeals challenging permanent residency rejections while granting temporary residence permits.

Background

In 2021, an amendment to the Aliens Act (Utlänningslagen) introduced a requirement for the permanent residence permit, linking it to applicants´ ability to support themselves. The preparatory work stated that this requirement is fulfilled only when the income has a “certain duration” and the absence of relevant case law led to the Migration Agency interpreting this duration as either permanent or lasting at least 18 months from the decision date. The recent judgement from the Migration Court of Appeal now provides clarity on the required length of employment for permanent residence permits.

Case Tried by Swedish Migration Court of Appeal

The case in question involved a doctoral candidate who arrived in Sweden in 2017 through family reunification. Employed since May 2019 with annual temporary contracts, she applied for a permanent residence permit in July 2021. The Migration Agency rejected her application, arguing that the employment did not meet the 18-month-duration requirement. The Migration Court (Migrationsdomstolen) overturned the decision, considering the consistent renewals and the university´s regulations on employing doctoral students. The Migration Agency appealed to the Migration Court of Appeal.

Court´s Decision

The Migration Court of Appeal first established the sufficiency of the applicant´s income to support herself. It then addressed the “certain duration” requirement, drawing parallels with case law MIG 2019:12 for temporary residence permits based on family reunification. The court concluded that the same interpretation should be applied to both permanent and temporary residence permits, emphasising the importance of flexibility and individual assessments. In light of the applicant´s employment history, and the likelihood of her employment being renewed, the court determined that she has demonstrated continuous financial capability over an extended period. The overall assessment favoured her eligibility for a permanent residence permit.

KPMG INSIGHTS

KPMG in Sweden acknowledges the significance of this judgement in providing much-needed case law-related clarity on the interpretation of the “certain duration” requirement for permanent residency.

KPMG continues to monitor new case law developments concerning the challenges posed by current legislation for permanent residence permits. We have observed issues, for example, regarding accompanying children who although they have had temporary residence permits as family members, such children face hurdles upon turning 18 when they are seen as adults – this can give rise to struggles around obtaining permanent residence permits.

RELATED RESOURCE

This article is excerpted, with permission, from "Update on Swedish Permanent Residency Requirements" (18 January 2024), an online publication of the KPMG International member firm in Sweden.

In English, click here.

In Swedish, click here.

Both are publications of the KPMG International member firm in Sweden.

* Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.

The information contained in this newsletter was submitted by the KPMG International member firm in Sweden.

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GMS Flash Alert is a Global Mobility Services publication of the KPMG LLP Washington National Tax practice. The KPMG name and logo are trademarks used under license by the independent member firms of the KPMG global organization. KPMG International Limited is a private English company limited by guarantee and does not provide services to clients. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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As an expert in immigration law and policy, I find the recent decision by the Swedish Migration Court of Appeal, as outlined in the GMS Flash Alert 2024-025, to be a significant development in clarifying the income requirement for permanent residence permit applicants in Sweden. This decision, dated December 2023, redefines the "certain duration" requirement for employment-based income, providing crucial insights that can impact individuals seeking permanent residency.

Firstly, let's delve into the key concepts used in the article:

  1. Certain Duration Requirement:

    • The "certain duration" requirement is a critical aspect of the eligibility criteria for permanent residence permits in Sweden. Previously, the Migration Agency insisted on a minimum employment duration of at least 18 months to meet this criterion.
  2. Amendment to the Aliens Act (Utlänningslagen) in 2021:

    • In 2021, an amendment to the Aliens Act introduced a new requirement linking permanent residence permits to the applicants' ability to support themselves. This amendment triggered the need for clarification regarding the duration of employment necessary to fulfill the income requirement.
  3. Migration Court of Appeal's Decision:

    • The recent judgment by the Migration Court of Appeal redefines the "certain duration" requirement. According to the new interpretation, an applicant's income may be considered to have a certain duration if employed for at least a year or if there is a likelihood, based on employment history, that the employment will be renewed beyond a year.
  4. Background of the Case:

    • The case involved a doctoral candidate who arrived in Sweden in 2017 through family reunification. Employed since May 2019 with annual temporary contracts, she applied for a permanent residence permit in July 2021. The Migration Agency initially rejected her application based on the 18-month duration requirement.
  5. Court's Assessment:

    • The Migration Court of Appeal considered the sufficiency of the applicant's income to support herself. It emphasized the importance of flexibility and individual assessments, drawing parallels with case law for temporary residence permits based on family reunification. The court concluded that the applicant demonstrated continuous financial capability over an extended period, making her eligible for a permanent residence permit.
  6. Impact on Ongoing Appeals:

    • The decision is highlighted as particularly favorable for individuals with consistently renewed, albeit shorter, employments. This clarification ensures legal predictability and consistency and could be instrumental for ongoing appeals challenging permanent residency rejections while granting temporary residence permits.
  7. KPMG Insights:

    • KPMG in Sweden acknowledges the significance of this judgment in providing much-needed case law-related clarity on the interpretation of the "certain duration" requirement for permanent residency. The firm continues to monitor new case law developments concerning challenges posed by current legislation for permanent residence permits.

In conclusion, this update underscores the dynamic nature of immigration policies and the critical role of judicial decisions in shaping and clarifying the requirements for permanent residency. The case discussed serves as a valuable precedent, impacting not only individual applicants but also influencing the ongoing evolution of immigration laws in Sweden.

Sweden – Court Clarifies Income Requirement for Permanent Residence Permit Applicants - KPMG Global (2024)
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