Migration Court of Appeal to review Union Preference and job advertisement publication periods

Overview 

The Migration Agency rejected a work and residence permit application, arguing that the union preference had not been respected since the full advertisement period had not yet elapsed when the employment contract was signed resulting in the advertised role not being available to EU and EEA nationals for the entire advertisement period. The Migration Court agreed with the Migration Agency, but the matter is now set to be reviewed by the Migration Court of Appeal.

Union preference: law and praxis

According to Swedish law, a work permit can only be granted if the recruitment process aligns with Sweden's commitments within the European Union. This means that the so-called union preference must be respected, ensuring that Swedish, EU/EEA, and Swiss nationals have had the opportunity to apply for a job opening on the European job market before it is offered to a third-country national. In practice, this is typically achieved by advertising the role in the Swedish Public Employment Service’s job bank, which also provides visibility in the European counterpart ‘EURES’. 

Current Swedish legal practice, reiterated by the Migration Court of Appeal in MIG 2015:6, stipulates that the vacant position must be advertised in Sweden and the EU/EEA for at least ten days. This ten-day requirement has remained the standard practice to be applied by the Migration Agency since. It should be noted, however, that the advertisement in question in MIG 2015:6 covered an exact ten-day period. Once these ten days have passed, a contract can be signed, and the union preference would be considered as having been respected. 

In cases where an application has been filed prior to the ten days or when a contract has been signed before the ten-day period ends, even if the application is filed later, the Migration Agency has argued that since the role has been filled there is no longer an available vacancy for individuals covered by the union preference and, consequently, a permit cannot be granted.

The case at hand: the importance of a set advertisement period

In the appeal at hand, the employer advertised the role on their company external webpage on August 12th, 2024, specifying that the last application date for the position was September 11th, 2024. The applicant signed their employment contract on August 27th, 2024, and started their new job on September 2nd, 2024. It should be noted that as the advertisement had not been done on the Swedish Public Employment Service’s job bank, this itself is normally enough to deem the requirement of union preference not met, but this is not the question being tried by the Migration Court of Appeal. Despite the advertisement period exceeding ten days before the employer and applicant signed a contract, the Migration Agency and the Migration Court argued that the act of signing the contract prior to the expiration of the set advertisement period means that the union preference was not respected, as the position was not available to all potential candidates from the date signing. Furthermore, the Migration Agency and the Migration Court contended that the employer had not demonstrated that they were unable to recruit someone from within Sweden, the EU/EEA, or Switzerland before signing the employment contract with the applicant.

The employer, on the other hand, argues that the advertisement was indeed available to Swedish, EU, EEA, and Swiss nationals for the mandatory ten days, and they did receive applications from union citizens. However, they could not find a suitable candidate other than the applicant. As such, the union preference was respected.

Deloitte’s commentary

Whilst it is positive to gain clarity on clarity on the mandatory ten-day period as stipulated by MIG 2015:6 versus the full advertisement period for the union preference, this case illustrates a shift towards a new and stricter interpretation adopted by the Migration Agency and the Migration Court. Although the underlying aim of the union preference is to ensure a fair and transparent access to employment opportunities for jobseekers within the EU/EEA and Switzerland, its practical application can be highly formalistic for all parties involved. This new legal interpretation of the union preference may create significant challenges for employers. For example, in sectors facing local and European talent shortages or for companies with a global workforce strategy, adhering strictly to a waiting period – even when a suitable third-country national has been identified – may not only delay hiring and relocation, resulting in lost opportunities, but in the long run, it may also impact company operations. 

It is also noteworthy, from the order of examination point of view, that the Migration Agency decided to put the weight of the rejection based on the publishing period, which has little to no foundation in practice, rather than considering the EU reach of the advertisement.  The ad was only published on the employer's external webpage, i.e. not on EURES, which both the Migration Agency and Migration Court has a longer history of reviewing and assessing. A criterion that should still be adhered to as a main rule. 

This potential development could run counter to the Swedish government’s expressed ambition to promote highly skilled labour immigration and simplify the process for attracting global talent. Introducing an increased separate time standard for recruitment processes solely for immigration purposes may subsequently raise new legal questions beyond the scope of immigration law. Many employers, aware of the importance of respecting the union preference, already design recruitment processes accordingly, such as having running ads for common vacancies to ensure visibility and continuous access within the EU labour market, thereby remaining compliant without delaying the recruitment process.

However, the notion that a job must not only be advertised for ten days but also remain practically unfilled for the entire duration of the advertisement period may place unnecessary constraints on businesses. Either making them unable to use running ads or requiring them to take down ads upon contract signing. There is also a risk that we in general will see shorter advertisement periods (i.e., closer to ten days), hich will affect not only third-country nationals but also Swedish, EU/EEA, and Swiss nationals, as the general timeframe for job applications would become much shorter. Additionally, advertisements would likely need to be more specific in the number of roles needing to be filled potentially increasing the number of posted advertisements even for similar or identical roles. This could make actual availability more difficult to navigate and potentially result in wasted application and advertisement efforts.

Looking towards the rest of the EU, the application of the union preference differs widely. Some EU countries have pre-approved companies for sponsorship of third-country nationals, quotas based on the number of national / EU employee, a dated threshold for when companies can start looking for third-country national talent or a critical skills and occupations list stipulating where there is a lack of local talent. It should be noted, however, that majority of these pre-approvals, confirmation on international hiring or skills lists are managed by the countries’ employment agencies to align with local employment law and not solely managed by the companies themselves. Some of these requirements are combined with regulatory reliefs, such as fast-track systems or a salary threshold that removes a set requirement. 

In Sweden, on the other hand, we have moved away from the fast-track system tied to specific employers in recent years, opting instead for fast processing for politically selected focus groups. Although we have a critical skills list established by the Migration Agency , its everyday application has been very limited. If the Migration Court of Appeal adheres to the new interpretation of the union preference, we could see an increased role of the Swedish Public Employment Service in the immigration process—especially in determining if the recruitment efforts for local talent were sufficient and no other applicant was suitable for the posted role. However, with a historical reference, the involvement of the Swedish Public Employment Service was something Sweden moved away from 2008 with the ambition to increase process efficiency, center the management of immigration with the Migration Agency and increase Sweden’s competitiveness on the European and global market. 

As a final note, it is important to return to the legislative intent behind the union preference. The objective was to ensure that jobseekers within the EU are made aware of job vacancies – nowhere is it stated that EU jobseekers have an absolute right to vacancies or that union citizens need to apply for the vacancy. The Migration Court of Appeal’s forthcoming decision will therefore play a pivotal role in clarifying whether the current implementation aligns with that original intent or if it would place unintended burdens on employers that could undermine Sweden’s competitiveness in the global labour market.

Deloitte will be monitoring the developments regarding this ruling.

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