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Eligible beneficiaries and family members
As mentioned in Residence Permit, the 2016 temporary law and then 2021 amendments to the Aliens Act affected persons’ ability to get a residence permit, the length of the residence permit as well as the ability to reunite with their family members.[1] On 20 October 2022, the ECtHR ruled in the case M.T. and Others v. Sweden and found that in that particular case the restrictions in the right to family reunification for the applicants concerned, where the person in Sweden was a beneficiary of subsidiary protection, did not breach Article 8 of the ECHR or Article 14 in conjunction with Article 8.[2]
In general, the right to family reunification is limited to core family members only, although other family members may be accepted under special circumstances. It also includes requirements on incomes and housing (i.e. the size and standards of housing) that need to be met when family members apply for family reunification more than three months after the beneficiary was granted protection status. However, the right to family reunification is available to both refugees and beneficiaries of subsidiary protection.
With the Temporary law valid until 19 July 2019, only refugees had the right to be reunited with their nuclear family. However, the extension of the Temporary Law in 2019 removed the ban on family reunification for beneficiaries of the subsidiary protection which is now available to both. This was mainly the result of litigation efforts and a Migration Court of Appeal ruling where the denial of family reunification for a young Syrian child was considered in breach of Article 8 of the European Convention on Human Rights (ECHR) and Articles 3, 9 and 10 of the United Nations Convention on the Rights of the child (CRC).[3].
Beneficiaries of international protection who have a temporary resident permit must also be regarded as having “well-founded” prospects of being granted a residence permit “for a longer time” in order to be entitled to family reunification.[4] With the exception of certain cases, e.g. in the case of cessation or withdrawal procedures, the Migration Agency usually considers that most beneficiaries of protection have “well-founded” prospects of being granted such a residence permit in practice.
With the cessation of the Temporary law and the changes introduced in the Aliens Act in 2021, the following persons are eligible for family reunification:
- Husband, wife, registered partner or cohabiting partner over 18 years;
- Children under the age of 18 years at the time of application;
- Parents to a child with protection status.
- Other relatives and children over 18 years may be eligible to reunite with the sponsor in Sweden if a particular dependency exists
Beneficiaries of international protection who have a temporary resident permit must have a “well-founded” prospect of being granted a residence permit “for a longer time” in order to be entitled to family reunification.
If the person in Sweden has a permanent residence permit, family reunification can also take place with the person they plan to marry or cohabit with in Sweden, subject to income and housing requirements (see below). There is no difference in the law between the right to family reunification for heterosexual couples and for same-sex couples. In the case of a couple that has not lived together as partners at the time of application, residence permit may be granted if the relationship is considered serious.
In a precedent ruling,[5] a case litigated by the Swedish Refugee Law Center, the Migration Court of Appeal found that when determining the age of the sponsor the relevant time should be the time of application of family reunification if the reference person is under 18 years when the application for family reunification is lodged. There shall be no condition that the application must be lodged within three months from the decision of residence permit for the reference person if the reference person is under 18 years at the time of application. The Migration Court of Appeal referred to the CJEU case C-133/19.[6]
In addition to this precedent ruling, it can be noted that the SMA issued a legal position in 2022 regarding the relevant time for determining the age of the applicant or the sponsor. According to the legal position, for a child who apply to a reunite with a parent in Sweden the relevant time is the time of application for family reunification, or, in cases when the application for family reunification is made within three months from when the parent was granted residence permit and protection status the relevant time is when the parent applied for asylum. For a parent who applies to reunite with a child in Sweden the relevant time for determining the age of the child/reference person is the time of application for family reunification, or, in cases when the child was under 18 years when applying for asylum but has turned 18 years at the time of application for family reunification, that child is still considered as a child if the application for family reunification was lodged within three months from the date the child was granted residence permit.[7]
For several years, one of the major obstacles to family reunification related to the obligation to prove one’s identity, as laid down in law. A number of precedent-setting rulings from the Migration Court of Appeal, the first from 2012, have allowed for the reunification of families who are unable to prove their identity. The Migration Appeal Court handed down a ruling on 5 March 2018, stating that for refugees and their nuclear family the level of proof of identity could be relaxed because it was unreasonable to expect them to approach their national authorities to obtain a passport and thereby endanger the situation of remaining family members in the country of origin.[8] In such cases a DNA test would be taken as a first instance measure as a means of proving identity. The Migration Agency has accepted this standard of proof both for refugees and for beneficiaries of subsidiary protection in cases where the family has lived together. The Migration Agency stated in October 2021 that due to the Taliban take-over in Afghanistan, Afghan citizens cannot acquire new passports. Therefore, if other conditions are met, Afghans applying for family reunification may be exempt from the obligation to prove their identity and present a passport. SMA confirmed this position again in June 2022.[9]
The SMA may issue a temporary alien’s passport in cases where the applicant is granted residence permit but has no valid travel document.
DNA testing is offered by the SMA to applicants in cases where the biological relationship has not been sufficiently established. If it is evident that such relationship does not exist, or if the application will be rejected on other grounds DNA testing will not be offered. Costs for test taking, transport and analysis of tests are covered by the State. If DNA testing is not offered by SMA, the applicant may pay for and present a DNA analysis. The applicant can get reimbursed if the DNA analysis verifies the biological relationship and the residence permit is granted.[10]
Material requirements and procedure
With the changes in the Aliens Act that came onto force 20 July 2021, some exceptions were introduced to the maintenance requirement. Everyone who wants to bring their family members to Sweden must be able to support both themselves and their family members and must have a domicile of sufficient standard and size. Refugees whose family applies for family reunification within three months of the sponsor being granted a permit are exempt from this requirement. This only applies to families who have cohabited, or when the relationship otherwise is considered as well established. Children are exempted from the maintenance requirement.
The income requirement is based on a standard amount for each member of the household that must be met after the rent/housing cost has been deducted. For 2022 the standard amount as from 1 July was:
- SEK 5,158/€ 457 for a single adult
- SEK 8,520/€ 756 for spouses or partners living together
- SEK 2,756/€ 244 for children aged 6 years or younger
- SEK 3,308/€ 293 for children aged 7 to 10 years
- SEK 3,860/€ 342 for children aged 11 to 14 years
- SEK 4,411/€ 391 for children aged 15 years or older
The sponsor should have an accommodation of sufficient size and standard. For two adults without children a home is big enough if it has a kitchen or kitchenette and at least one room. If children are going to live in the home, there must be more rooms. Two children can share a bedroom.[11]
When there are special reasons, the maintenance requirement may be lifted fully or partly. The preparatory work gave as an example that there could be special reasons for persons who have retired from the labour market or who are unable to work due to disability or sickness. For resettled persons, the time limit of three months should be counted from the date the sponsor arrives in Sweden and not the date the residence permit was granted.
The procedure is initiated by the family members abroad, who are the applicants in this procedure, however it may be initiated by a representative in Sweden (the sponsor or someone else) provided they are given a Power of Attorney to do so. Applications are either handed in at a Swedish Embassy or Consulate that provide this service or made through the online application form of the Swedish Migration Agency.
For applications made by family members other than the spouse, partner or child of a BIP, there is an application fee of SEK 2,000 / EUR 180 per adult and SEK 1,000 / EUR 90 per child.
In 2022, a total of 39,286 applications for residence permits based on family ties were lodged (of which 30,098 were first time applications). The Migration Agency issued a total of 34,589 decisions (of which 27,048 were first time applications), out of which 50% of the first-time applications and 89% of the subsequent applications were approved. By the end of the year, a total of 38,102 family reunification applications were pending (of which 32,526 were first time applications). Across all instances, a total of 2,143 residence permits were granted in family reunification cases where the person in Sweden was a former asylum seeker.[12]
The average waiting time from application to decision was 382 days for first time applications, and 208 days for subsequent applications.[13] According to the Aliens Ordinance Act, Chapter 4, Section 21 a, an application for family reunification shall, unless there are any particular reasons, be decided on within 9 months. According to the Administrative Procedure Act, Section 12, an applicant may in all applications to authorities at first instance request a decision if more than six months has passed since the application. The SMA must then within four weeks either decide on the case or take a separate decision to reject the request. A decision to reject such a request may be appealed to the Migration Court.
In case of a negative decision, applicants may submit an appeal before the Migration Court within three weeks of receiving the decision from the SMA.[14]
In November 2018, FARR published a critical report on the persisting challenges in family reunification procedures.[15] FARR also made a formal complaint together with the Stockholm City Mission to the European Commission claiming Sweden was breaching its commitment to respecting time limits for dealing with applications for family reunification.[16] This complaint was first addressed in an EU pilot procedure (ref EUP (2018) 9384) in which the Swedish authorities submitted a reply to the Commission’s questions. The Commission did not consider the reply of the Swedish authorities satisfactory, and therefore launched an infringement procedure by sending a letter of formal notice on 17 July 2019 (ref NIF Case 2019/4073).[17] In December 2020 the scope of the procedure was extended to Directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing.[18] The procedure is still ongoing. In a decision in December 2022, the Swedish Parliamentary Ombudsman criticised the SMA for long delays in the handling of a number of cases.[19]
[1] For further details see AIDA, Country Report Sweden, 2021 Update, May 2022, available at: https://bit.ly/3R31wRd, 101.
[2] ECtHR, M.T. and Others v. Sweden, Application No 22105/18, 20 October 2022, available at: http://bit.ly/42MqE3T.
[3] Migration Court of Appeal, MIG 2018:20, 13 November 2018, available in Swedish at: http://bit.ly/3R5eAp0.
[4] Ch. 5, Section 3 Aliens Act. Note that the Swedish translation of “reasonable” in Article 3 of the Family Reunification Directive is equal to “well-founded” rather than reasonable.
[5] Migration Court of Appeal, Decision MIG 2022:11, 8 December 2022, available in Swedish at: https://bit.ly/3WAhx2c
[6] CJEU, Case C-133/19, B.M.M., B.S., B.M., B.M.O. v. Belgium, 16 July 2020, available at: http://bit.ly/3JQb0fs.
[7] Migration Agency, Rättsligt ställningstagande. Tidpunkt för bedömning av barns ålder i ärenden om uppehållstillstånd på grund av familjeanknytning – RS/001/2022 (version 2.0), September 2022, in available in Swedish at: http://bit.ly/3zckWuF.
[8] Migration Court of Appeal, MIG 2018:4, UM-2630-17, 5 March 2018, available at: https://bit.ly/3jOZ7Jf.
[9] Migration Agency, Rättsligt ställningstagande. Afghanska medborgares möjligheter att skaffa pass – RS/087/2021, 11 October 2021, available in Swedish at: http://bit.ly/3JgWVJm.
[10] Aliens Act Chapter 13 Section 15 and 16.
[11] Migration Agency Regulation 2022:8, available in Swedish at: https://bit.ly/3KaTKll.
[12] Migration Agency, Monthly statistical report December 2021.
[13] Migration Agency, Monthly statistical report December 2021.
[14] Aliens Act Chapter 14 section 3.
[15] FARR, ‘När lagen splittrar – En exempelsamling om striden för familjeåterförening’ in Artikel 14 #3 2018, available in Swedish at: https://bit.ly/3WEnbAn.
[16] Stockholms Stadsmission, Göteborgs Stadsmission and FARR, Complaint to the European Commission, available at: http://bit.ly/2Fqclbp, no longer available as of March 2023.
[17] European Commission, July infringements package: key decisions, available at: https://bit.ly/2SEFyqs.
[18] European Commission, December infringements package: key decisions, available at: https://bit.ly/3LttbX4.
[19] Information provided by FARR via e-mail in January 2023. See also: https://bit.ly/3nm4u8t.