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:
The Migration Court of Appeal’s judgement
The Migration Court of Appeal had to decide on:
The conclusions of the Court were the following:
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
Switchboard
seimmigration@deloitte.se
+46 75 246 26 00