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New case law defines the maintenance requirement when applying for permanent residency in Sweden

Immigration alert

Case background

A third-country national (the applicant) held a time-limited permit in Sweden which was dependent on the individual’s spouse. The applicant’s spouse held a work and residence permit which was linked to their employment in Sweden. As the applicant had held a dependent permit of more than four years, he applied for a permanent residence permit alongside his spouse. While his spouse (the sponsor) was granted permanent residency, the applicant's application was rejected by the Migration Agency due to the maintenance requirement not being fulfilled. 

The maintenance requirement in this situation stipulates that a permit may only be granted if the sponsor has the means to support themselves and their dependent family member. They must also have a home of a sufficient size and standard for the family to live in. 

The Migration Agency assessed that the sponsor did in fact have accommodation of sufficient size and standard, but her net salary after tax deduction was not considered as enough to support herself and the applicant. There were not any special reasons to make an exception to the maintenance requirement. The application for the applicant was therefore rejected. The case was appealed to the Migration Court which rejected the appeal on the same grounds as the Migration Agency. The case was later appealed to the Migration Court of Appeal. In the appeal, the applicant stressed the following:

  • He had previously held a residence permit as a family member to his spouse. There should not now be a requirement for the sponsor to be able to support both herself and him for him to be granted a residence permit based on his connection to her.
  • If a maintenance requirement is imposed, then not only the sponsor’s income but also his own income should be considered in assessing whether she can support both herself and him.
  • It is reasonable to take into account that spouses have a duty to support each other and that they provide financial support to one another, which means that the household’s total income should be taken into consideration.

The Migration Court of Appeal’s judgement

The Migration Court of Appeal had to decide on:

  • Whether there is a requirement that the sponsor needs to be able to support both themselves and their family member.
  • Whether the applicant’s income can be taken into account if such a requirement exists.
  • Whether there is room for the applicant to be granted a permanent residence permit without the sponsor being able to support both themselves and him.

The conclusions of the Court were the following:

  • The applicant has held a time limited residence permit based on his relationship to his spouse who had a residence permit based on her employment in Sweden. He is now applying for a residence permit as a dependent to a resident with a permanent residence permit in Sweden. Therefore, the application does not qualify as a “extended residence permit” which would mean that the sponsor would be exempt from the maintenance requirement. No other exemptions from the maintenance requirement were applicable.
  • The family member’s income cannot be taken into consideration when assessing if the maintenance requirement is fulfilled. The sponsor must fulfil the maintenance requirement by his/her own income. 
  • The Migration Court of Appeal concludes the case with the statement that neither the Migration Agency nor the Migration Court has assessed whether the applicant may be granted a permanent residence permit based on another ground. Hence, the case was remanded to the Swedish Migration Agency for further processing. 

Deloitte’s comments

The Migration Agency has previously been able to assess a household's total income to determine if the maintenance requirement is met. Now, the Migration Court of Appeal is changing this provision and states that the maintenance requirement, according to the applicable paragraph, must be fulfilled by the sponsor alone.

The Migration Court of Appeal proceeds with determining what constitutes an application for an extended residence permit for which the maintenance requirement is not applicable. The court’s ruling in this regard supports the Migration Agency’s current practice, meaning that a switch from a permit based on family relations to a worker to a permit for a permanent residence permit does not constitute an extended residence permit. In our opinion, it is valuable that this is clarified and established through case law. 

In addition to the above, the Migration Court of Appeal addresses the conditions for granting the applicant a permanent residence permit on an alternative basis, when the maintenance requirement in the applicable paragraph is not fulfilled. The court notes that the applicant has had a residence permit for four years, thereby meeting one of the requirements for a permanent residence permit according to the alternative basis. However, the other requirements, such as the applicant’s ability to support himself had not been examined by the Migration Agency or the Migration Court. In such examinations, there is no housing requirement or requirement for the sponsor to be able to support both themselves and the foreign national simultaneously. The case was therefore remanded to the Migration Agency for further assessment.

Despite the growing complexity that the process of permanent residency entails, we now expect that the number of rejected applications for co-applying family members due to the maintenance requirement not being met by the reference person, will decrease. We know from experience that to make Sweden an attractive destination for highly qualified workers, their family members must also be granted certain concessions to obtain permits.

If an application for your employee’s family member has been rejected on this ground, our immigration experts at Deloitte would be happy to help you examine whether the rejection may be challenged. For example, by appealing the decision or requesting a re-examination. This is done by our legal professionals within the immigration team.

Contact

If you have questions, you are welcome to contact us:

Martina Ogenhammar Conti 
Director, Nordic Immigration Offering Lead - Global Employer Services 
mogenhammar@deloitte.se 
+46 70 080 21 60 

Kaltrina Abazi 
Manager, Immigration – Global Employer Services 
kabazi@deloitte.se 
+46 70 080 32 62  

Evelina Ohlsson
Consultant, Immigration - Global Employer Services 
eohlsson@deloitte.se 
+46 70 080 35 20 

Ellen Reidal 
Associate, Immigration - Global Employer Services 
ereidal@deloitte.se 
+46 70 080 29 75 

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