A non-EU national who lives outside of Sweden but commutes to the country for work on a daily basis may be granted a temporary residence permit, according to a new ruling by the top migration court in Sweden.

The court ruled on the case of an American citizen who lives in Denmark but works in Sweden.

He was granted a temporary work permit in 2016, but when he applied to extend it in 2018 the Migration Agency rejected his request, arguing that since he did not generally live in Sweden and had no plans to move there any time soon, he could not be seen as staying in Sweden and was therefore not entitled to a residence permit.

There are two Swedish concepts that are important to understand this conflict. One is dygnsvila ('daily rest'), a term that is often used to denote that someone resides at the place they sleep. Because the applicant did not spend his nights in Sweden, the Migration Agency argued he could not be seen as residing in the country.

The second is vistelse ('stay', which to complicate matters has a broad meaning ranging from living somewhere to just being in that place), one of the requirements for being given a Swedish residence permit. The American applicant argued that since he worked in Sweden he spent most of his day in the country and therefore met the vistelse requirement, while the Migration Court, which upheld the rejection, countered that “the term stay in the Swedish language refers to something other than daily commutes to work”.

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But the man then took the case to the Migration Court of Appeal, which ruled in his favour. The court's decisions set a legal precedence and will therefore affect other work permit applicants in a similar situation in the future.

It wrote in its judgment that the man's commute did in fact meet the requirements for staying in Sweden to the extent required by the law. It added that there was no legal requirement for the man to spend the nights (his dygnsvila) in order for him to be considered to be staying in Sweden as far as the vistelse condition went.

It based its decision on preparatory work by legislators when the law was created, finding that the intent of the law was to help ensure Sweden's demand for labour was met as well as to facilitate international mobility across borders. That applies even if the applicant does not intend to permanently live in Sweden, wrote the court.

“The traditional notion that migration is to do with moving from one place to another, where the migrant intends to settle permanently, has proved increasingly insufficient to describe the migration patterns of our time,” read the court judgment, paraphrasing one of the original bills where the reasons behind the law were laid out.

“The term circular migration describes human movements between countries that may be temporary or more permanent and that can make a positive contribution to the growth of everyone involved.”

As such, the court dismissed the Migration Agency's grounds for rejection and sent the man's case back to the agency, which will now have to review whether or not he fulfils other requirements for a work permit.

The full court jugdment can be read (in Swedish) here.

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