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EXPLAINED: What Brits need to know about Sweden’s new post-Brexit bill

On November 11th, Sweden's parliament voted in favour of a key post-Brexit rights bill which would see British citizens and their families granted a new residence status. The Local looks over what's included.

Published: 11 November 2020 12:14 CET
Updated: 12 November 2020 07:14 CET

EXPLAINED: What Brits need to know about Sweden's new post-Brexit bill

As of December 1st, Brits should be able to apply for a new residence status if already living legally in Sweden. File photo: Bench Accounting/Unsplash

What's happening?

On Wednesday, the Swedish parliament voted in favour of a bill meant to protect British residents' right to stay in Sweden after 2020.

This was the last stage of the legal process before this becomes law, and it is now set to come into effect from December 1st.

What are the proposals?

After the UK left the EU on February 1st, 2020, it entered a so-called transition period during which UK nationals retained the same rights as before to move to, live in, and work in Sweden. This transition period is scheduled to end on December 31st, 2020, after which EU law will no longer apply to Brits.

These proposals regulate what will apply to Brits in Sweden after that. The government has proposed that British citizens who have moved to Sweden before the end of the transition period should be required to apply to the Swedish Migration Agency for a new residence status, granting them many of the rights they currently enjoy as EU citizens. You can read more about the new status on the Migration Agency website.

That includes the right to work and access healthcare, for example, under the same rules as EU citizens. The government also proposes that the Migration Agency issue documents to cross-border workers (for example, those Brits who are working in southern Sweden but commuting from their home in Denmark).

People walk past a Migrationsverket office. Photo: Janerik Henriksson / TT

What will I have to do to get my residence status?

Under the new law, British citizens will need to apply to the Migration Agency for the residence status, which would be in the same form as a residence permit card. This is different from countries which have chosen a registration model, meaning Brits already living in the country simply need to inform authorities of their residence.

Depending on whether you have been in Sweden for less than or more than five years, you will be granted either temporary or permanent residence. It would be free to make the application.

To prove you are legally resident, you do not need to have a personal number; the Swedish Migration Agency has previously told The Local you can use “any type of documentation”.

This could be proof of having paid rent, proof of the date you travelled into Sweden, or a job contract, although the Swedish personal number (a social security number) is the easiest way to prove your residence. Brits who arrived in Sweden as job-seekers might have registered with the Public Employment Agency and received a coordination number.

In order to be legally resident, you must meet one of the following categories: being employed or self-employed in Sweden; job-seeking (for up to six months); be a family member of another person who is legally resident (such as a non-British EU citizen, Swedish citizen, or work permit holder); have sufficient assets and health insurance to provide for yourself; or have lived legally in Sweden for at least five years, in which case you no longer need to meet any of the other requirements to continue to have right of residence.

You do not need to be physically in Sweden at the end of the transition period as long as you meet the criteria for being legally resident; welcome news perhaps to anyone whose Christmas or travel plans are uncertain due to the impact of the coronavirus pandemic.

When does the law come into effect?

The proposals are set to come into effect on December 1st, 2020.

Although the transition period ends on December 31st, that would not be the deadline for Brits to apply for their new residence status. The government proposed a ten-month application period, meaning Brits would have up until the end of September 2021 to apply.

What if I want to apply for Swedish citizenship, will the new residence status 'restart the clock'?

To apply for Swedish citizenship, foreign nationals must have been living in Sweden for five years, or three years if they are living with a Swedish spouse or partner and have been doing so for at least two years.

Usually, a permanent residence status is a prerequisite for non-EU citizens to apply for citizenship.

Under the proposals, there would be an exemption for British citizens who moved to Sweden before the end of the transition period. For the purposes of applying for citizenship, the post-Brexit residence status would be considered equivalent to permanent residence status.

What if I want to move to Sweden after December 31st, 2020?

In that case, the same rules would apply for Brits as currently apply for other non-EU citizens, barring any future law changes.

That means you would need to apply for and receive a residence permit (for example, a work permit or a permit to join a family member in Sweden) in order to be able to move to Sweden.

Member comments

Anonymous - 11 November 2020 at 22:41 CET

Are you sure that the after 31 December section is correct?

Become a Member to leave a comment.

Is Sweden getting EU law wrong in Brexit cases?

According to a document the Migration Agency sent to the European Commission earlier this year, 2,096 people have had applications for post-Brexit residency rejected, of whom 1,607 applied on time and 489 applied after the deadline for applications on December 31st 2021 had passed.

Of the people who applied on time and were rejected, the most common stated reason for rejection – applying in 623 cases – was that they were not judged to have fulfilled the requirements for a right of residency, or uppehållsrätt, under EU law.

According to two EU lawyers The Local has spoken to, the agency has tended to take a stricter line than other EU countries on what is required to fulfil the requirements for a right of residency on what constitutes “reasonable grounds” for a late application, and on how to apply a “proportionality” test to its decisions.

“I would say that the Swedish Migration Agency has a very formal, strict approach,” Fabrizio Vittoria Beijer, a lawyer with Momentius LPA who previously worked within the Migration Agency, told The Local. “It is difficult for the migration officers to navigate EU law, in particular when it comes to applying it to very specific circumstances that might require a more in-depth assessment.”

He said that his firm had had several cases, some Brexit related, where case officers had in his view misapplied European law.

“We work a lot with European law, and we are still struggling in some cases where European law is not applied in the correct way because of a lack of knowledge,” he said.

Strict criteria on who qualifies for post-Brexit residency

In the first group of cases – those rejected despite applying on time – Vittoria Beijer and another lawyer The Local spoke to said that Migration Agency case officers sometimes appeared to misunderstand the requirements for EU right of residency.

Under EU freedom of movement rules, there are no residency requirements for the first three months, and after that you need to be employed and registered at an address. But Vittoria Beijer said that under EU law, the definition of “employment” is quite broad.

“The employment and remuneration that European citizens are supposed to receive [to qualify for a residency right] is much, much, much lower than the requirement if you apply for a normal Swedish work permit or for family reunion,” he said.

There is, he said, no minimum salary requirement and no requirement to work a minimum number of hours.

“It doesn’t matter if you work full-time or part-time, or have temporary work where you work one month and then you finish and then you work one month again. And the remuneration is irrelevant so long as you can support yourself,” he said.

The key test, he said, is that the work cannot be “ancillary and marginal”.

There had been one case in the European Court, he added, where someone had been judged to qualify for residency despite only working five hours a week, and another where a worker for a religious organisation was judged to qualify despite receiving no remuneration whatsoever.

“He was providing services to the church where he was working in a very regular way. And the European Court of Justice said that this was enough.”

It is only those who have no employment whatsoever, he continued, who needed to show that they had sufficient funds saved up to support themselves.

“It the person is not working, then the person will have to show that they have sufficient means as well as insurance,” he said.

“There are absolutely no minimum requirements. You have to show that you are able to support yourself, and you don’t even have to have the sufficient means yourself. It can be that there’s someone else supporting you with the money. You can show that you receive in a regular way a certain amount of money, for example, let’s say 10,000 or 15,000 Swedish kronor per month, which will be enough to support yourself.”

Another EU lawyer The Local spoke to, who did not want to be identified, said that in several cases he had been involved with, Migration Agency case officers appeared to apply the stricter försörjningskrav, “subsistence requirement”, that applies to residency applications under Swedish law, for example for those applying for work permits.

“They have kind of been infected by the recent changes in the legislation on försörjningskrav, the kind of tightening up that’s come from the parliament,” he said.

Strict judgement on late applications

In the Withdrawal Agreement the UK signed with the EU, members states are asked to consider whether those who missed the deadline had “reasonable grounds” to have a late application granted, and also requires late applications to be judged “in proportionate manner”.

In a document on the treatment of late applications sent by the Migration Agency to the Commission, Sweden’s Migration Agency appears to argue that anyone who was not aware of the deadline for applying for post-Brexit residency is automatically disqualified from having reasonable grounds for a late application.

According to the EU lawyer the Local spoke to, this approach has been supported by Sweden’s migration courts.

“The courts have applied a rule that all British citizens have a strict personal responsibility to keep themselves apprised of all changes in immigration rules, meaning that if it turns out that they weren’t aware of the need to apply within time for post-Brexit resident status under the withdrawal agreement, that, in itself, automatically disqualifies them for having any reasonable grounds for applying late,” he said.

Vittoria Beijer conceded that this went back to the Roman era maxim ignorantia juris non excusat: “ignorance of the law is no excuse”.

“This is, of course, a very old principle in the legal system. But this is a very specific situation and it would not have been a big effort from the Swedish Migration Agency to send a notification to British citizens informing them about what rights and obligations they might have according to the Withdrawal Agreement.”

Ignoring Britons’ right to residency for reasons other than post-Brexit status

The EU lawyer said that Sweden’s migration authority had frequently not considered whether a UK citizen might have a right to residency in Sweden for a reason other than those stipulated in the UK Withdrawal Agreement.

They have instead tended to assume, he said, that any British citizen, who by January 1st 2022 had not applied for either a residence permit under Swedish law, or residence status under the withdrawal agreement, was automatically illegally in Sweden.

But Vittoria Beijer said that under the Withdrawal Agreement, the agency was supposed to go further than this.

“Article 18 says that even if the UK citizens do not apply for resident status within the deadline, the agency is obliged to conduct an assessment of their situation. The agency is obliged to to conduct a very in-depth assessment about the personal circumstances – the family ties and the work conditions of British citizens in Sweden. So they cannot just reject because you haven’t applied for resident status within the deadline.”

Not assessing whether refusal of residency is ‘proportionate’

The Migration Agency and migration courts, the lawyers told the Local, also often appeared to ignore the requirement under the Withdrawal Agreement that decisions to refuse post-Brexit residency be “proportionate”.

In the EU Withdrawal Agreement, it states that all those refused residence status should have access to “judicial and, where appropriate, administrative redress procedures”.

These redress procedures, it says, “shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.”

Vittoria Beijer said that the proportionality test suggested British citizens with close ties to Sweden, especially those with young children, should not be refused residency even if they missed the deadline.

“We are maybe talking about a father with small children. You should consider those specific circumstances in order to see whether a rejection based on the fact that you didn’t apply within the deadline will be proportionate to the fact that the person will need to leave these small children behind in Sweden.”

He said that in such a case, it seemed to him that refusing residency would not be proportionate.

The Local is arranging an interview with Carl Bexelius, the Migration Agency’s Head of Legal Affairs, to clarify the agency’s position on the legal issues surrounding post-Brexit residency.

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