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• Section A General questions
• Section B Questions on specific provisions
• Section C Final questions
• Section D Table on transposition

From a law faculty it was pointed out that the proposal meant that in Swedish law there would be three different systems for the granting of residence permits referring to family connections (for third country nationals in general, asylum seekers and EU citizens) [Comments from the law faculty at Stockholm University (June 10, 2005).]. Hence, it was argued that the regulations will be unclear and that a risk for unequal treatment and even reverse discrimination could occur.

Some critical voices raised objections against the possibility to revoke granted residence permits; the requirements for family ties were said to be too rigid, the requirements for maintenance were said not to be necessary and more. This kind of criticism – which was delivered from the left wing (the social democratic party not included) in the Riksdag – was based on the general standpoint that the EU not should interfere in these matters, at least not in the way the Directive represented.

Further, an important amendment is that the former examination concerning if a marriage or cohabitant relationship with someone who is residing or have been granted a residence permit in Sweden is serious, no longer has to be made. The amendment does not embrace a foreigner having the intention to get married etc.with someone in Sweden; compare ch. 5 § 3a.

A child’s independent right to family reunification has been more explicitly expressed in the amended law. Further, there is a new regulation explicitly stipulating that a parent still staying in the country of origin must consent to the child’s application for a residence permit in Sweden (the Aliens Act ch. 5 § 17) [Government’s proposition 2005/06:72, p. 35].

An application for residence permit should be rejected referring to polygamy, for instance for a married partner when the reference person already is married and is living together with that person in Sweden. A new regulation is in force stipulating that reason for a rejection (the Aliens Act ch. 5 § 17b). However, children’s’ residence permits could be granted even if the parents are in a polygamies relationship.

In Swedish law there was no particular provision stipulating that an application for a residence permit should be rejected referring to public order and security. However, referring to the Directive a new provision has been inserted saying that for members of the core family, it should be possible to reject an application if the applicant constitutes a threat to public order or security (Aliens Act ch. 5 § 17). However, in practice that is not a more restricted order.

A reason for not granting a permanent residence permit is, for instance, that the foreigner’s way of life etc. could be questioned, or if the intention to marry or to live with someone that the applicant is referring to, is not considered to be serious or if the relationship is fictitious.

Hence, Swedish law is going beyond the requirements from the Directive and the entitlements are more favourable to union citizens as well as stateless persons compared with the Directive. [Before the Riksdag’s dealing with the new Aliens Act it was pointed out that the Directive’s article on the matter is a minimum provision. See Government’s proposition 2005/06:72, p. 28. Compare the former Aliens Act ch. 2 § 4.]

A registered partner should be treated as a husband or wife. An amendment has been made referring to the Directive meaning that a spouse etc. shall be granted a residence permit (the former wording was that a residence permit “may” be granted to a spouse etc.). [Government’s proposition 2005/06:72, p. 31 f.]

Concerning the last sentence in article 4(1) and the possibility to examine if the child meets an existing condition for integration, there were no such provisions in the former Aliens Act, and the Riksdag’s decision referring to the Directive is that such a provision should not be introduced. [Government’s proposition 2005/06:72, s. 35.] (See also B.20)

The Aliens Act has been amended stipulating that a husband or wife respectively shall be granted a residence permit (before the regulation stipulated that a husband etc. may be granted such a permit). [Government’s proposition 2005/06:72, p. 31.]

Further, the previous regulation saying that a husband and wife that have not been staying together should be subject to an examination if the relationship is serious. From now on a residence permit should be granted without such an examination (the Aliens Act ch. 5 § 3.1). [An exception is, for instance, if the relationship is polygamic. Government’s proposition 2005/06:72, p. 31.]

Further, the same should apply to a cohabitant to a person having a permanent residence permit (the Aliens Act ch. 5 § 3a.1). The regulation also embraces a person who is bound to the sponsor by a registered partnership. An explicit precondition is that the relationship is considered to be serious and no particular reasons tell against this.

However, a husband and wife that have not been living together abroad should be granted a one year residence permit at the first decision (in practice the Migration Board’s decision will be a residence permit for two years), and the same should apply to the other categories mentioned. That means that persons having the intention to live together should have the same right to a one year residence permit at the first decision (Aliens Act ch. 5 § 8 referring to §§ 3.1 and 3a) [Government’s proposition 2005/06:72, p. 32.]. An explicit precondition is that the relationship is considered to be serious and that particular reasons do not tell against the granting of a residence permit.

In accordance with Swedish judicial practice a marriage or cohabitant relationship between minors under the age of 18 years should not be accepted. [Compare Government’s proposition 1983/84:144, p. 75.] However, for a person less than 18 years a permission to marry could be granted by the County administrative board. A precondition is that there are particular circumstances to refer to, for instance if the parties have children.

Concerning registered partnerships, such a relationship may not be registered if any of the parties is under the age of 18 years.

Further, a marriage that has been entered abroad under foreign law should not be recognised in Sweden if any of the parties is a Swede or had his/her domicile in Sweden, and if there would have been obstacles in Swedish law or if the marriage follows from compulsion. [Government’s proposition 2005/06:72, p. 38.]

In general the authorities’ dealing with a matter are regulated in the Administrative Act (1986:223; reprinted in SFS 2003:246). The administrative procedure is further regulated in ch. 13 of the Aliens Act, but most of those provisions are concerning oral dealing.

In Swedish law the principal of officially (officialprincipen) means that a State authority has a duty to investigate a matter in line with the matter’s nature. This principle also embraces the Migration Board and usually this duty also means that the authority requests a passport or other identification documents.

The investigation also deals with the requirements that the foreigner should not constitute a threat to public order and safety (compare the Aliens Act ch. 5 § 17a.3). In order to control this matter the authority in charge, for instance, requests extracts from certain public registers.

Further, in the Migration Board’s Aliens handbook there are practical guidelines for the dealing with residence permits and more, and there are also wordings concerning written proofs. For instance, a certificate of matrimonial eligibility (“äktenskapsbevis”) should be original, even if such a certificate is not an unconditional requirement.

However, there are some categories that do not have to pay fees when an application is made. Firstly, it is asylum seekers in Sweden and secondly, the exception embraces a husband, wife or cohabitant and children below the age of 18 years to a foreigner that has been granted a residence permit referring to the provisions concerning foreigners “in need of protection” (see ch. 4 § 2 and ch. 5 § 3.4) or in “particular distressing circumstances” (ch. 5 § 6).

In the Aliens Act ch. 5 § 18 there are derogations from the principle mentioned above. Hence, a residence permit may be applied for when the foreigner is in Sweden, if the foreigner could be granted residence permit as a refugee or otherwise in need of protection, or if there are particular distressing circumstances (see ch. 5 § 6), or if the application means a prolongation of a permit previously granted, or if the foreigner has a strong connection to a person residing in Sweden (ch. 5 §§ 1–7) and if it is not reasonable to request that the foreigner makes the application from abroad, or if there are otherwise particular reasons. [Compare the Supreme Migration Court, Case UM317-06, 2006-11-02. (The judgement was not available in full text at November 24, 2006.)]

Further, an application for a prolongation of a time-limit residence permit may be applied for when the foreigner already is staying in Sweden (the Aliens Act ch. 5 § 19).

The Migration Board’s internal steering documents set up a goal that applications should be dealt with within a six months period. However, this goal is not a binding regulation and could not be compared with a fixed time-limit.

The time-limits in practice are continuously reported at the Migration Board’s web site [http://www.migrationsverket.se (November 17, 2006)]. For instance, in November 16, 2006, 78 percent of the applications handed in at a Swedish embassy or consulate concerning family reunification, referring to a recently established relationship, were dealt with within 12 months.

When a child is affected in matters concerning residence permits, the child should be listened to if it is not considered inappropriate (ch. 1 § 11). If there is reason to revoke a foreigner’s residence permit and a child is involved, the child’s need to be in contact with the foreigner should be considered (ch. 7 § 4; concerning expulsion referring to criminal activities, compare ch. 8 § 11.2).

Concerning a child, for whom custody is shared between both parents, the other party sharing custody should have given his or her consent before the family reunification with the other parent staying in Sweden. [Government’s proposition 2005/06:72, p. 35.]

In accordance with Swedish law an application for granting a child residence permit shall not be refused referring to a polygamic relationship (compare the Directive, article 4.4). (But, concerning adults in polygamic relationships, an application for a residence permit should be rejected, if the applicant or the reference person already is married and is living together with that person in Sweden; see the Aliens Act ch. 5 §§ 17a.3 and 17b.)

Further, family reunification could be refused if the reunification follows from a marriage between minors under the age of 18 years (see also B.9) [A marriage when one or both of the parties is a minor (under 18 years) must be approved by the County administrative board; see the Marriage Code 2 ch. 1 §. See Government’s proposition 2005/06:72, p. 38.]. Another motive to restrict residence permit for children referring to a marriage is to prevent compulsive marriages. [See Government’s proposition 2005/06:72, p. 38.]

Even if Swedish law do not approve polygamic relationships that does not mean that a child born in a polygamic relationship should be refused a residence permit. [Government’s proposition 2005/06:72, p. 40.]

Concerning “public health” the Government did not find any reason to put a proposal before the Riksdag. [Government’s proposition 2005/06:72, p. 43.]

However, foreigners are offered courses in Swedish language and concerning Swedish society and more.

If the husband/wife or cohabitant has not been constantly living with the reference person abroad, the foreigner has a right to a residence permit referring to ch. 5 § 3a. But in accordance with ch. 5 § 8 a time-limit residence permit should be imposed. The same regulation should apply if the parties have the intention to live together in Sweden without having done that abroad.

For parents applying for residence permit in Sweden referring to a connection to an unmarried child already staying in Sweden, the Aliens Act ch. 5 § 3.4 should apply. A requirement is presumed that the parent(s) and the child should have been living in the same household already in the country of origin and that there was a particular dependent relationship between the parents and the child. [Government’s proposition 2005/06:72, p. 45.]

However, a residence permit may be granted also otherwise if there are particular reasons therefore, and if the foreigner has a particular connection to Sweden (Aliens Act ch. 5 § 3a section 2.3).

Further, from the provision mentioned it follows that also the parent has a right to residence permit referring to the unaccompanied child. This right does not embrace any other grown-up person that might have replaced a parent.[Government’s proposition 2005/06:72, p. 85.] However, such a person could be granted a residence permit referring to ch. 5 § 3a.2 or 3 (as a relative to a refugee or a person otherwise in need of protection or a person who in any other way has a particular connection to Sweden). [Government’s proposition 2005/06:72, p. 86.]

Hence, if a relationship is the base for a right to a family reunification, it is obvious that an investigation in order to make clear the relationship should be done. What kind of measures that should be taken depends on the information that the foreigner can present. For instance, if there are clear formal written proofs of the relationship a further investigation is not considered as necessary.

In practice there is an emphasis on measures completing the written, formal proofs on relationship. In the public investigation that was presented before the Government worked out the proposition, there is an account for different aspects of the investigation on relationship between grown-ups [See Official report SOU 2002:13, pp. 182 ff.]. The focus is very much on cases where the relationship is based on a marriage or a cohabitant relationship.

Hence, there are thorough investigations when the Migration Board carries out interviews with the parties. Rather detailed questions are asked concerning the acquaintance, what the parties know about each other, future plans and more. The aim is to find out if the relationship is serious. (Beyond that there is – as indicated above – also formal documentation, and even other measures are taken, for instance extracts are made from registers concerning committed crimes, verdicts of guilty etc.)

A shift on focus was advocated by the investigation presented in 2002 [Official report SOU 2002:13, pp. 184 and 187]. It was claimed that more attention should be paid to the reference person’s ability to provide for relatives etc. that have applied for family reunification than to the family connection.

Emphasis on the ability to provide should primarily apply to so called “fast connections” (“snabba anknytningar”), since such connections may be characterised by the parties not having lived together and recently established relationship [A definition on the term “fast connections” is found in the Government’s proposition 2005/06:72, p. 31]. Further, a temporary residence permit will be granted normally for two years at the first decision, when the relationship is a “fast connection”. [The Aliens Act ch. 5 § 16. Government’s proposition 2005/06:72, p. 47. Concerning the “two years” practice, see Government’s proposition 2005/06:72, p. 49.]

The Migration Board is in charge of the investigation, but Swedish authorities in other countries are often engaged as well. [Official report SOU 2002:13, p. 191.]

In the Aliens Act a possibility to use DNA analysis in order to give proof of the biological relationship was introduced on July 1, 2006 (ch. 13 § 15) [Government’s proposition 2005/06:72, p. 67 ff. See also Official report SOU 2002:13, p. 211]. In matters concerning applications for residence permit referring to a family connection it is possible for the applicant – as well as for the reference person – to ask for such a an analysis.

A precondition for the right to DNA analysis is that the ordinary investigation of family ties is not sufficient for the granting of a residence permit, and that it is not obvious that the claimed relationship is present (§ 15).

The DNA analysis method should primarily be reserved for cases dealing with family reunification between minors and parents. However, also in other certain cases a DNA analysis should be offered, for instance when an older father wants to be reunified with a grown-up child staying in Sweden.

The DNA analysis is voluntary and there must be a written consent. The foreigner must also be informed of the aim of the test (§ 15). Further, the costs associated with the test should be paid by the State.

In the Aliens Act ch. 13 there are provisions on oral dealing before a decision on expulsion could be taken by the Migration Board. Hence, the measure should be taken at the end of the procedure, when an application for residence permit has been rejected and the question has been raised if the foreigner should be expulsed.

The temporary permit is also, as stated above, used when there is reason to make a so called postponed examination of the right to have a residence permit (“uppskjuten invandringsprövning”).

In accordance with ch. 6 § 3, a work permit may be granted to a foreigner having a temporary residence permit, if not the reason for the residence permit tells against such a decision.
However, if the temporary residence permit is granted referring to family reunification, a work permit is automatically granted for the period. Hence, a family member will have the same entitlements as the reference person concerning access to the labour market. [Government’s proposition 2005/06:72, p. 51.]

The State authority’s possibility to “choose” between a permanent residence permit and a time-limit residence permit at the first decision is depending on whether the parties have or have not been living together before. The latter relationship is characterised as a “fast connection” [Government’s proposition 2005/06:72, p. 47]. If the “fast connection” is considered to be serious and stable and the relationship is continuing, a continued residence permit should be granted (the Aliens Act ch. 5 § 16).

However, there are circumstances when a continued residence permit should be granted even if the basic relationship between the reference person and the foreigner has ceased (ch. 5 § 16). That is (1) if the foreigner has a particular connection to Sweden, or (2) the relationship has ceased because the foreigner or the foreigner’s child has been subject to violence or insulting behaviour in the relationship or (3) if there are other strong reasons for granting the foreigner a continued residence permit [Government’s proposition 2005/06:72, p. 47]. Further, referring to these “particular reasons” a residence permit may be granted even before a two-year-period.

In accordance with the Aliens Act ch. 5 § 16, a continued residence permit (including a permanent permit) may only be granted if the relationship founding the base for family reunification still exists when the decision is taken. This explicit regulation should apply to time-limit residence permits referring to ch. 5 § 8 (concerning parties having the intention to live together in Sweden etc.).

This also follows implicitly from the Aliens Act ch. 3 § 5 and also cohabitants are embraced by the regulation. Further, this regulation also embraces husbands or wives or cohabitants that no longer have the intention to live together. [Government’s proposition 2005/06:72, p. 88.]

In accordance with the Aliens Act ch. 5 § 16, a foreigner having a time-limit residence permit (see § 8) referring to family reunification, should be granted a prolonged permit only if the relationship still exists.

However, disregarding that provision there are circumstances when a continued residence permit should be granted, even if the basic relationship between the reference person and the foreigner has ceased (ch. 5 § 16). That is – and on this point I am repeating myself (compare my comment on article 15, B.32) – (1) if the foreigner has a particular connection to Sweden, or (2) the relationship has ceased because the foreigner or the foreigner’s child has been subject to violence or insulting behaviour in the relationship or (3) if there are other strong reasons for granting the foreigner a continued residence permit [Government’s proposition 2005/06:72, p. 47]. Further, referring to these “particular reasons” a residence permit may be granted even before a two-year-period. (The same comment is made above in connection with my comment on article 15, B.32)

As stated above a child having a residence permit has an independent right to family reunification and, hence, a parent could be granted a residence permit referring to the connection with the child (see the Aliens Act ch. 3 § 3).

Before a decision to withdraw a residence permit for such a person also the foreigner’s relation with the child and the foreigner’s connection to Swedish society should be considered (compare the Aliens Act ch. 5 § 3a, concerning reasons for the granting of a residence permit). (Further, see comments below to article 17, B.37)

The problem is to decide whether the information provided is correct or not. Concerning fraud or marriage or partnerships of conveniences, which should not be accepted in accordance with the Aliens Act ch. 5 §17a.2, the matter was discussed in the preparatory works approved by the Riksdag [Government’s proposition 2005/06:72, p. 39 f. Concerning the practical examination if a pro forma marriage or other relationship is serious, see also Official report SOU 2002:13, pp. 151 ff.]. The starting point should be that the information presented concerning a marriage etc. is correct. However, if the Migration Board suspects that a marriage could be a pro forma marriage, a deeper examination should be carried out.

Regarding the burden of proof, it is the State authority that must prove that the marriage is a pro forma marriage etc. The investigation should be made in the same way as when investigating whether a marriage is serious or not. That is, an examination concerning for instance the establishment of the relationship and the parties’ familiarity etc. Concerning the criteria of a pro forma marriage, the preparatory works explicitly refer to the practice in the European Court of Justice.

In the Government’s proposition that was approved by the Riksdag, referring to article 17, it is explicitly stated that before a withdrawal of a residence permit concerning family reunification, considerations should be made regarding the “nature and solidity of the person's family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin...” [Government’s proposition 2005/06:72, p. 50.](The wording exactly follows the text in article 17.)

It could also be mentioned that in the Aliens Act ch. 7, there are also more general provisions specifying the circumstances for withdrawal of residence permits, work permits and more. In accordance with ch. 7 § 1, a residence permit, work permit etc. may be revoked, if the foreigner consciously has presented incorrect information or consciously has concealed circumstances relevant for the decision to grant the residence permit.

The Migration Board is in charge of the investigation of the application for residence permit referring to family reunification matters, and the Board is the first instance to take a decision.

In accordance with the Aliens Act ch. 14 § 3 the Board’s decision could be appealed against at a Migration court, if the decision deals with a rejection of an application for residence permit and more. [However, this order should not apply to a decision on refusal to enter Sweden. Such a decision should be appealed against to the Police authority in first instance. Further, there are certain regulation concerning security matters to be dealt with by the Security police, and an appeal against such a decision should be directed to the Government. See also the Government’s proposition 2005/06:72, p. 61.]

The Migration court’s decision could be appealed against to the Supreme migration court in accordance with the Aliens Act ch.16 § 9.

However, the requirement for a serious relationship is still present when a residence permit is applied for referring to an intention to get marry etc. (the Aliens Act ch. 5 § 3a.1).

A positive aspect of the amendment is that it is often difficult to examine if a relationship is serious and this leads to a risk for arbitrary treatment. On the other hand, if there are no restrictions considering these matters the law is more open to undue advantages.

Finally, I agree with the position taken by the Stockholm law faculty. The amended system on family reunification means that there are three different systems for the granting of residence permits referring to family connections (compare my answer concerning general questions above). Hence, there is a risk that the regulations will be unclear and that unequal treatment and even reverse discrimination could occur

• The Aliens Act 2005:716: Utlänningslag (only in Swedish)

• correct transposition
• no transposition
• violation of the Directive
• unclear