Judgement about the maintenance requirement for work permits

The Migration Court of Appeal has issued a ruling that may affect how the maintenance requirement for work permits in Sweden is assessed. The case involves a care assistant whose application for an extended work permit was denied because her base salary did not meet the new requirement. By allowing compensation for work outside of standard working hours to be included in the assessment, and by considering the salary over a longer period, the ruling opens up for a more flexible interpretation of the rules. This may have implications for many employees and employers who now need to adapt to the new conditions.

To obtain a work permit in Sweden, a person must be able to support themselves through their employment. As of November 1, 2023, a maintenance requirement was introduced, stipulating that the salary must reach at least 80 percent of the median salary in Sweden.

A recent case involved a care assistant in the municipality of Boden, who sought to extend her work permit. Her base salary was lower than what is required by the maintenance requirement, but by working outside of standard working hours (such as nights and weekends), her average salary increased. The Swedish Migration Agency rejected her application, arguing that the changes in her schedule were merely to meet the requirements for an extended work permit, and that her salary could not be guaranteed on a monthly basis.

The Migration Court of Appeal decided that additional compensation for inconvenient working hours can be considered when assessing if the salary requirement is met. The condition is that this compensation is regular and clearly stated in the employment contract. The court also stated that the salary can be assessed over a longer period, such as a year, instead of on a monthly basis. This means that if the average salary over a year meets the requirement, it may be sufficient to obtain a work permit.

This ruling signifies an important change in how the maintenance requirement for work permits is assessed. For employers and employees, it means there is more flexibility in including additional compensation aide from the base salary and evidence that the Swedish Migration Agency should continue making individual assessments. However, it is crucial for employers to ensure that these compensations are clearly regulated in employment contracts and follow industry practices.

KPMG welcomes the significance of this ruling as it clarifies what can be counted towards meeting the maintenance requirement for work permits. The decision is particularly beneficial for individuals with generally lower base salaries who are compensated through other salary supplements. KPMG continues to monitor developments regarding the maintenance requirement and views this as an important step towards ensuring assessments are made on an individual basis.

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Swedish version