Riksdag bill about migrant worker deportations withdrawn – but Migration Court of Appeal sets legal precedent

Riksdag bill about migrant worker deportations withdrawn – but Migration Court of Appeal sets legal precedent

Over the past 18 months, deportations of non-EU labour have made media headlines and been hotly debated in Swedish politics. The case of developer Tayyab Shabab became a symbol for how minor administrative oversights have resulted in unreasonable deportations of highly-skilled workers in Sweden’s IT industry.

Sweden’s start-up scene relies on international talent, and especially highly-skilled IT workers are in short supply. In Stockholm, labour shortages are reaching the highest levels in ten years, and companies are desperate for knowledge and talent in order to continue to grow. Despite this, the last 18 months have seen numerous incidences where Swedish companies have lost international talent due to small administrative errors or oversights.

Where did it all go wrong?

New rules were introduced for labour migration from countries outside the EU/EES and Switzerland in 2008 in order to make it easier for employers to hire labour from outside Europe. But something didn’t go as planned and the system was abused by fraudulent companies, with cases of inter alia Thai berry pickers being lured to Sweden under poor working conditions. To rectify the problem, tightened legislation, where new requirements for salary and insurance were introduced in 2014. The following year, the Migration Court of Appeal (Migrationsöverdomstolen) made two judicial decisions where people were denied an extension of their work permits because the employer had paid too little salary. The Court’s decisions became a legal precedent for the Swedish Migration Agency’s assessments – both retroactive and forward. As a result, rejections on applications for extended work permits almost doubled between 2015-2016. Generally, these deportations were a result of minor administrative errors made by employers. The Work Permit Holders Association (WPHA), a non-profitable organisation established in May 2016, identified the main reasons for the deportations as being:

  1. Earning a few hundred kronor less one, or several months, despite the yearly salary meeting regulations;
  2. Error in pension insurance payments;
  3. Minor errors in vacation compensation, such as not taking enough vacations, or receiving payment for vacation allowance in one month but taking the vacation during another month;
  4. Getting jobs through channels other than the Employment Service (Arbetsförmedlingen);
  5. Having multiple jobs while changing profession/employer;
  6. Late application for a new work permit after changing employer/profession (some employers do not want to deal with the Migration Agency during a trial period).

Riksdag bill withdrawn

A proposed amendment to Swedish law, which would have reduced the number of foreign workers deported over technicalities or mistakes in their permits, was rejected by the Council on Legislation (Lagrådet) earlier in November.  The Council criticised the wording of the bill and that relevant stakeholders did not have enough time to give feedback on the proposed legislation. The bill has now been withdrawn as there was not enough time to make the necessary changes before the 1 December deadline.

 The bill (Prop. 2016/17:212) presented by the government earlier this summer has been passed in the Riksdag. But that bill has faced criticism for not being effective enough. The Riksdag Committee on Social Insurance has now made a so-called announcement (tillkännagivande) to the government urging it to submit a proposal to the Riksdag that labor immigrants should not be expelled if an employer has made small errors and that this also applies if the fault is detected after the expiration of the permit period, or if the Migration Agency has detected the error. The committee suggest that the new rules should apply as soon as possible, but no later than 1 July, 2018 (2017/18:SfU7). The Alliance parties made a reservation, stating that the deadline should be 1 May, 2018. The Riksdag will debate the possibility to refrain from the withdrawal of residence permits in cases where employers have voluntarily remedied shortcomings on Wednesday.  The debate can be viewed here.

Setting legal precedent

The Migration Court of Appeal (Migrationsöverdomstolen), which is the highest court for migration cases, has been considering a case which many hope will set legal precedent on how to deal with work permit violations and clarify that the Migration Agency must respect the principle of proportionality.

On 13 December, the Migration Court of Appeal ruled in favour in the case of Danyar Mohammed who has been facing deportation because his salary was 460 SEK less than the minimum wage according to a collective bargaining agreement. He was represented by Centrum för rättvisa.

The Court’s decision today will now set a new legal precedent that the Migration Agency must respect the principle of proportionality. 

(For further background on labour immigration, see our Lex Tayyab article in the Mundus Store).

 

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Jessica Nilsson Williams is the CEO & Founder of Mundus International. She has a long-standing interest in international affairs, having studied and worked in the field for more than 20 years. She began her career as the political advisor at the U.S. Embassy in Stockholm, and then worked in London and Singapore before returning to Stockholm. In 2011 she took up a senior role at the New Zealand Embassy before founding Mundus International in 2012. In addition to working for foreign missions, she has worked in sectors such as NGOs and non-profit organisations (e.g. the Clinton Foundation and the International Red Cross), and TV.