Remaining uncertainty regarding legal requirements in labour migration

The recent White Paper implementing the Directive on Students and Researchers (Dir. 2016/801) in Sweden has not contributed to clarifying legal requirements of minimum employment terms and conditions in the context of labour migration.

The Directive sets out grounds for residence and work permits for researchers, students, interns, volunteers and au-pairs. In the memorandum Implementation of the Directive on Students and Researchers (Ds 2018:37), the author of the government-issued report proposes how to implement the Directive into Swedish law. Jenny Welander Wadström, partner at Roschier, recently participated in the White Paper consultation group on behalf of the Swedish Bar Association (Sw. Advokatsamfundet), with the task of reviewing the White Paper. Please find the Swedish Bar Association’s reply here.

Labour migration is accepted if the employment terms and conditions conform to Swedish standards. If an employee who is covered by the directive (such as a researcher, an au-pair or an intern) is entitled to less favourable employment terms and conditions than those implied by Swedish collective bargaining agreements (“CBA“) or what is considered “market practice” in the profession or the industry sector, the employee may be denied a residence and work permit. Furthermore, the permit may be revoked or an extension denied if the terms and conditions do not correspond to the Swedish CBA or the market practice in the profession or the industry sector. This legal requirement is also already applicable to regular labour migration, i.e. to all employees from outside of the European Economic Area who come to work in Sweden. The interpretation of the term is therefore of great interest to non-EEA labour migration in general.

It is difficult to determine the employment terms and conditions that are implied by CBAs or constitute market practice in a particular profession or industry sector. Firstly, CBAs are not publically available in a large CBA database. For different reasons, both employer and employee organizations try to ensure the CBAs are unavailable to the public, with a few exceptions. Secondly, it is difficult to say whether (minimum) requirements according to a CBA are acceptable, or whether the requirements refer to the average pay in a profession or industry sector. These difficulties have been raised previously in the context of general labour migration. Yet, the White Paper does not contribute to its solution. Despite some clarifications from the Supreme Migration Court (MIG 2017:24, MIG 2017:25; MIG 2018:12), major questions remain. In other words, this legal requirement remains characterized by great uncertainty.

In addition to the remaining uncertainty, the consequences of making miscalculations are severe. Miscalculating the pay, etc. implied by CBAs or constituting market practice in a particular profession or industry sector may have serious consequences. The individual in question may be denied a permit, or have their permit revoked or extension denied. The company that wishes to employ the individual risks losing key expertise. Furthermore, the employing company risks not being allowed to employ labour migrants in the future. In certain sectors in particular, companies are dependent on recruiting highly-qualified employees from outside the EEA. On top of the risk for the company of losing skills and expertise, representatives of the relevant company even risk criminal sanctions.

Advice for avoiding risk in an uncertain and crucial area. Until the uncertainties have been resolved by either the legislator or the courts, we have the following advice for companies that employ labour migrants:

  1. To the extent possible, provide third country national employees with the same terms and conditions of employment that you would provide to any employee.
  2. Document the rationale behind your assessments.
  3. Keep a close and open dialogue with the Swedish Migration Agency (Sw. Migrationsverket), which is responsible for permits, and the Swedish Work Environment Authority (Sw. Arbetsmiljöverket), which has been appointed an advisory role in this context.

If you have further questions, please do not hesitate to contact Roschier law firm.