Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Sweden (RATIFICATION: 1982)

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Article 1 of the Convention. Basic human rights. The Committee previously noted that a framework agreement was reached, in June 2012, extending state subsidized health care to undocumented immigrants. It requested the Government to provide further information on its implementation. While regretting the lack of information provided by the Government, in its report, the Committee welcomes the adoption, in 2013, of Act (2013:407) on healthcare for certain foreigners residing in Sweden without proper documentation, which gives undocumented migrants the right to subsidized health care for “care that cannot be deferred”. Referring to its previous comments on posted workers, the Committee notes with interest the amendments introduced, in 2017, in the Foreign Posting of Employees Act (1999:678) by Ordinance (2017:319) regarding the protection of the rights of posted workers. It notes, more particularly, that sections 10 and 11 of the Act now require foreign employers to (1) report to the Swedish Work Environment Authority (SWEA) when they post workers to Sweden and (2) appoint a contact person in Sweden, who shall be able to provide documents to agencies and employees’ organizations that show that the requirements of the Act have been fulfilled. In addition, sections 14 and 24 provide for financial penalties as well as compensations in the event of non-compliance. Referring to its 2020 direct request on the application of the Labour Inspection Convention, 1947 (No. 81) by Sweden, the Committee further notes that a Department for Joint Authority Control has been established within the SWEA to control the registry of posting of foreign workers. The Committee requests the Government to continue to provide information on the measures adopted in order to ensure full respect for the basic human rights of all migrant workers, irrespective of their legal status. It requests the Government to provide information on the activities of the Swedish Work Environment Authority to enforce the rights of foreign workers in an irregular situation, including on any assessment of their access to subsidized health care, as well as of the Department for Joint Authority Control, regarding registry and protection of posted workers. The Committee further requests the Government to provide statistical information, disaggregated by sex, nationality and sector of activity, on the number of migrant and posted workers, whether in a regular or irregular situation.

Articles 2–4. Measures to prevent and address irregular migration. The Committee previously noted that special regulations and more stringent control apply to certain industries where abuse of labour rules has proven to occur (i.e. berry picking, cleaning, hotel and restaurants, construction, trade, agriculture and forestry, automobile repair, and services sectors), before the Swedish Migration Board can issue a work permit to third-country nationals, that is, from countries outside the European Union (EU) and the European Economic Area (EEA). It requested the Government to provide information on the impact of these measures in reducing the employment of migrant workers in abusive conditions. The Committee notes the Government’s indication that, in 2018, the Police Authority has been granted increased powers to carry out workplace inspections to ensure that employers do not rely on employees who do not have the right to stay or work in Sweden, in industries where it has been assessed that there is a particular risk for such employment. It further notes that the Foreigners Act was amended in July 2021 (Prop. 2020/21:191) so that residence permits granted to, amongst others, persons in need of protection and other migrant workers, as a general rule will now be temporary. A permanent residence permit can be granted at the earliest after the foreigner has had a temporary residence permit for at least three years and only if the applicant is able to prove his or her financial independence and that there is no doubt that a permanent residence permit should be granted taking into consideration his or her «expected way of life». The Government adds that the possibility of being granted a permanent residence permit at the first decision has probably been a factor that has contributed to Sweden being considered a country that is more attractive for asylum seekers compared with other countries in the European Union. The Committee takes note of this information. It regrets the repeated lack of information provided by the Government on the potential impact that the measures already implemented may have had in reducing the employment of migrant workers in abusive conditions. The Committee notes that, in its 2018 report, the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) highlighted that it is not uncommon for third-country nationals to be asked to pay fees to agencies which provide them with temporary work and residence permits in Sweden as such agencies, while being regulated by the Private Placement Act (1993:440), do not require a licence to operate and there is no public sector supervision of their work. Furthermore, the GRETA expressed concern about (1) the implications of the decision to transfer the mandate for anti-trafficking actions to the Gender Equality Agency, in 2018, since the primacy focus of the agency would be trafficking for the purpose of sexual exploitation; as well as (2) the fact that the actions plan against trafficking adopted in 2016 focused on sexual exploitation. In that regard, the Committee notes that the GRETA specifically recommended that the Government should ensure that action against trafficking in persons is comprehensive and addresses all victims of trafficking for all forms of exploitation, taking into account the particular vulnerability of irregular migrants and asylum seekers (GRETA 2018(8), 8 June 2018, para. 32, 37, 74). The Committee therefore requests the Government to provide information on: (i) the measures taken to detect, prevent and address trafficking in persons for forced labour purposes, in particular of migrants in an irregular situation and asylum seekers; and (ii) any evaluation undertaken regarding the impact of the measures implemented so far in reducing the employment of migrant workers in abusive conditions. It also asks the Government to provide statistical information on the number of workplaces inspections carried out and of migrant workers in an irregular situation or illegally employed identified, as well as on the nature of the infringements detected.

Articles 5 and 6. Penal, civil and administrative sanctions and prosecution of traffickers for labour purposes. The Committee previously noted that both the Foreigners Act (Chapter 20, sections 5a, 8, 9 and 12) and the Penal Code (Chapter 4, section 1(a)) criminalize trafficking in persons or employing intentionally or through negligence a foreigner without a work permit, and provide for sanctions of imprisonment and a fine. It requested the Government to provide information regarding the new sanctions that would be introduced through the implementation of Directive 2009/52/EC of the European Parliament and the Council of the EU of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (Sanctions Directive). The Committee notes that, in 2018, the Penal Code was amended (Prop. 2017/18:123) to introduce a new criminal provision on human exploitation (Chapter 4, section 1(b)) in order to strengthen protection against exploitation of persons for work or begging, in cases not covered by the definition of trafficking. Under aggravated circumstances, the person found guilty is sentenced by imprisonment from two to twenty years. In this regard, the Committee asks the Government to refer to its 2021 comments made under the Convention on Forced Labour, 1930 (No.29) and the Protocol of 2014 to the Forced Labour Convention, 1930. The Committee welcomes this information. It however notes with regret the lack of information provided by the Government on the application of the provisions of the Foreigners Act and the Penal Code in practice and the number of prosecutions carried out and sanctions imposed. In that regard, it notes that, in its 2018 report, the GRETA was concerned that the number of prosecutions for trafficking remained low and the number of convictions is even lower. Moreover, the GRETA highlighted that most of the investigated cases have concerned trafficking for the purpose of sexual exploitation, as it is more difficult to start legal proceedings in cases of trafficking for forced labour purposes (GRETA 2018(8), 8 June 2018, para. 193). The Committee requests once again the Government to provide information on the application of sections 1(a) and 1(b) of Chapter 4 of the Penal Code and sections 5a, 8, 9 and 12 of the Foreigners Act, criminalizing trafficking in persons and human exploitation for forced labour purposes, including on the number of infringements detected or reported, investigations conducted, persons prosecuted, and of administrative, civil and penal sanctions imposed. It also asks the Government to provide information on any measures taken or envisaged to strengthen the capacity of prosecution and law enforcement authorities, in particular regarding trafficking in persons and human exploitation for forced labour purposes. The Committee asks the Government to provide information on any evaluation made regarding the transposition and implementation of the Sanctions Directive in the country

Article 9(1). Equality of treatment of migrant workers in an irregular situation with respect to rights arising out of past employment. The Committee previously noted that one of the proposed amendments regarding the implementation of the Sanctions Directive would be that third-country nationals who have been working in Sweden without the required work permit would have a statutory right to outstanding remuneration from the employer for work already performed. In the absence of information provided, the Committee once again asks the Government to provide information on the progress made regarding the adoption of any legislative amendments relating to equal treatment of migrant workers in an irregular situation, in respect of outstanding remuneration and any other benefits arising out of past employment. It further asks the Government to provide information on any cases detected by the Swedish Work Environment Authority or claims brought by migrant workers in an irregular situation regarding non-payment or underpayment of wages, and their outcomes.

Article 9(3). Costs of expulsion. The Committee previously noted that pursuant to Chapter 19, section 1 of the Foreigners Act, a foreigner who is expelled is liable to pay the cost of his or her own journey to the place to which he or she is required to travel through the action of the authority. The Committee wishes to underline that, according to Article 9(3) of the Convention, in case of expulsion of the worker or his or her family, “the cost shall not be borne by them”. The Committee draws the Government’s attention to paragraph 310 of the 1999 General Survey according to which a “clear distinction should be made between: (1) the case where the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her (such as, redundancy before the expected end of contract), in which case the cost of his or her return as well as the return of family members, including transport costs, should not fall upon the migrant; and (2) the case where the migrant worker is in an irregular situation for reasons which can be attributed to him or her, in which case, only the costs of expulsion may not fall upon the migrant”. In the absence of information from the Government in this regard, the Committee again asks the Government to clarify whether Chapter 19, section 1 of the Foreigners Act covers all migrant workers who are in an irregular situation, including those who are in an irregular situation for reasons that cannot be attributed to them.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee previously noted that the Discrimination Act (2008:567) prohibits direct and indirect discrimination at work and promotes equal rights and opportunities regardless of a number of grounds, including ethnicity. Pursuant to the Act, ethnicity means national or ethnic origin, skin colour or other similar circumstances (Chapter 1, section 5). The Committee observes that no information was provided by the Government regarding the nature and impact of the measures taken to achieve the objective of equality of opportunity and treatment between nationals and migrant workers lawfully in the country. The Committee once again asks the Government to provide information on the measures taken to achieve equality of opportunity and treatment between nationals and migrant workers lawfully in the country with respect to the matters set out in Articles 10 and 12 of the Convention, as well as on their impact. It further asks the Government to provide information on the number, nature and outcome of any cases of discrimination against migrant workers dealt with by the labour inspectorate, the Equality Ombudsman, the courts as well as any other competent authorities, in particular in the framework of the Discrimination Act.

Article 14. Free choice of employment and restrictions. The Committee previously noted that an employer who wishes to recruit a third-country national has to respect the community preference within the EU and the EEA and requested clarifications regarding the implementation of this rule. Since no information was provided in this regard, the Committee once again asks the Government to clarify whether this rule of preference also applies in the case a third-country national who is already in Sweden and applying for a new work permit because he or she is changing occupations.

Enforcement and practical application. The Committee previously noted the responsibilities of the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Employment, the Swedish National Police, the Swedish Prosecution Authority and the Swedish National Council for Crime Prevention in enforcing the relevant legislation giving effect to the provisions Convention. In light of the absence of information in this regard, the Committee again asks the Government to provide information on: (i) the activities of the above-mentioned bodies entrusted with the supervision of the application of the relevant legislation giving effect to the Convention, and their impact; and (ii) any other information, including studies and surveys, which may enable the Committee to gain a general appreciation of the application of the Convention. It also asks the Government to provide information on any judicial or administrative decisions handed down concerning the application of the Convention, including by the migration courts and the Supreme Migration Court.

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Article 1 of the Convention. Basic human rights of all migrant workers. The Committee notes the Government’s explanations regarding the human rights laid down in the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms which has been incorporated into Swedish Law. The Committee understands that the Government reached a framework agreement in June 2012 extending state subsidized health care to undocumented immigrants. With regard to posted workers, the Committee also refers to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee requests the Government to provide information on how effect is given in practice to Article 1 of the Convention, with respect to all migrant workers, independent of their migrant status and type of residence and work permit, and include information on any relevant jurisprudence in this regard. Please also provide further information on the framework agreement extending access to subsidized health care to undocumented migrant workers.

Articles 2 to 4. Measures to prevent and address irregular migration. The Committee notes that certain industries, especially those where abuse of labour rules has proven to occur, are subject to more stringent control before the Swedish Migration Board can issue a work permit to nationals from countries outside the European Union (EU) (third-country nationals) and the European Economic Area (EEA). The Committee notes the special regulations applying to employers who wish to recruit berry pickers from countries outside the EU and for the cleaning, hotel and restaurants, construction, trade, agriculture and forestry, automobile repair, and services sectors. Companies must demonstrate that they can guarantee wages, have previously paid salaries and taken out insurance, and have given the trade union concerned the opportunity to express its opinion about the terms of employment. The Committee also notes the role given to trade unions in monitoring employment on sites covered by collective agreements; in workplaces not covered by collective agreements unions may require that employment contracts be signed. The Committee further notes the information regarding the role of the National Rapporteur on Trafficking in Human Beings. It also notes the annual report of the National Rapporteur on Trafficking in Human Beings for Sexual Exploitation and Other Purposes of 2011, which refers to particular situations of abuse, including trafficking, against berry pickers from Thailand and Bulgaria and the related prosecutions initiated and sanctions imposed. The Committee welcomes the measures taken to exchange information and to cooperate with other States regarding irregular migration, including trafficking in persons, such as the Baltic Sea Task Force on Organised Crime (BSTF), and the efforts by the Government to improve coordination of anti-trafficking efforts at the level of the EU. The Committee requests the Government to provide information on the impact of the abovementioned measures in reducing the employment of migrant workers in abusive conditions, including information on the number and nationality of workers employed in an irregular situation in the sectors concerned, and the nature of the infringements noted. Please include specific information on any abuses of labour rules detected by the competent authorities in companies not covered by collective agreements.

Articles 5 and 6. Penal, civil and administrative sanctions and prosecution of traffickers for labour purposes. The Committee notes with interest the amendments to the Chapter 4, section 1 of the Penal Code, which entered into force on 1 July 2010, to strengthen the protection in criminal law against trafficking, including the abolishment of the requirement of double criminality to enable Swedish courts to sentence those guilty of trafficking in persons committed abroad. The Committee further notes Chapter 20, sections 5a, 8, 9 and 12 of the Foreigners Act imposing sanctions, including fines and imprisonment of up to six years, on persons employing intentionally or through negligence a foreigner without a work permit or for migrant smuggling, and Chapter 4, section 1a of the Penal Code imposing sanctions, including imprisonment of up to ten years for trafficking in persons. The Government also indicates that new sanctions will be introduced through the implementation of the Directive 2009/52/EC of the European Parliament and the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (Sanctions Directive). The Committee requests the Government to provide information on the progress made in transposing the Sanctions Directive, and information on the number and nature of the infringements detected or reported, investigations conducted, persons prosecuted, and sanctions imposed.

Article 9(1). Equality of treatment with respect to rights arising out of past employment. The Committee notes the Government’s indication that one of the proposed amendments regarding the implementation of the Sanctions Directive would be that third-country nationals who have been working in Sweden without the required work permit would have a statutory right to outstanding remuneration from the employer for work already performed. The Committee asks the Government to provide information on the progress made regarding the adoption of any legislative amendments relating to equal treatment of migrant workers in an irregular situation in respect of outstanding remuneration and any other benefits. Please also provide information on any cases detected by the inspection authorities or claims brought by irregular migrant workers regarding non payment or underpayment of wages, and the outcome of these cases for the workers.

Article 9(3). Costs of expulsion. The Committee notes that pursuant to Chapter 19, section 1 of the Foreigners Act, a foreigner who is expelled is liable to pay the cost of his or her own journey to the place to which he or she is required to travel through the action of the authority. The Committee refers to paragraph 310 of the 1999 General Survey on migrant workers and requests the Government to clarify whether Chapter 19, section 1 of the Foreigners Act is meant to cover all migrant workers who are in an irregular situation, including those who are in an irregular situation for reasons that cannot be attributed to them.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes with interest Chapter 6, section 5a of the Foreigners Act providing that asylum seekers who have been denied asylum, can be granted a work permit if he or she has found employment and has been working for at least six months. The Committee notes that the new Discrimination Act (2008:567) entered into force on 1 January 2009 superseding seven different Acts on discrimination. The Act aims to address direct and indirect discrimination and to promote equal rights and opportunities regardless of sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age, but omitting the ground of “nationality or citizenship”. At the same time the Ombudsman for Discrimination was established to supervise the legislation. The Committee asks the Government to indicate whether consideration is being given to including nationality in the list of prohibited grounds of the Discrimination Act, and how inequalities in the labour market on the basis of nationality are being addressed in practice. In this regard, the Committee also asks the Government to provide information on the measures taken under the integration policy, and in particular any positive impact they may have had in achieving the objective of equality of opportunity and treatment between nationals and migrant workers lawfully in the country with respect to the matters set out in Articles 10 and 12 of the Convention. Please also provide information on any cases brought by migrant workers before the Ombudsman for Discrimination and the courts, and their outcome.

Article 14. Free choice of employment and restrictions. The Committee notes that pursuant to the Foreigner’s Act a work permit may be granted for the duration of the offered employment or a maximum of two years, and that for this period, the work permit shall be linked to a particular employer and refer to a particular kind of work (Chapter 6, sections 1 and 2); after the aggregated period of two years, the work permit shall only be linked to a particular occupation; however, the foreign worker who wishes to change occupations must reapply for a new permit (Chapter 6, sections 2 and 2a). The Committee further notes that a permanent residence permit may be granted to a foreigner who for the past five years has had a temporary residence permit for work for an aggregate period of four years (Chapter 5, section 5). Noting the Government’s indication that an employer who wishes to recruit a third-country national has to respect the community preference within the EU and the EEA, the Committee requests the Government to clarify whether this rule also applies in the case a third-country national who is already in Sweden and applying for a new work permit because he or she is changing occupations.

Parts III to V of the report form. Enforcement and practical application. The Committee notes the information provided by the Government regarding the responsibilities of the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Employment, the Swedish National Police, the Swedish Prosecution Authority and the Swedish National Council for Crime Prevention in enforcing the relevant legislation and giving effect to the provisions Convention. The Committee requests the Government to continue to provide information on the activities of the abovementioned bodies entrusted with the supervision of the application of the relevant legislation giving effect to the Convention, and their impact, as well as any other information, including studies and surveys, which may enable the Committee to gain a general appreciation of the application of the Convention over time. Please also provide copies, and if possible, a summary, of judicial or administrative decisions concerning the application of the Convention, including the migration courts and the Supreme Migration Court.

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Articles 2 to 6 of the Convention. Measures to address migration in abusive conditions. The Committee notes that an interdepartmental working party has been appointed, involving the social partners, to codify the present state of knowledge and to recommend measures to combat trafficking in persons. Noting that the findings of the working party were to be presented by the end of 2007 in the form of a draft national plan of action, the Committee asks the Government to provide a copy of the action plan to combat trafficking, if available in English, and if not a summary of the recommendations made, and information on any follow-up action taken to implement the recommendations made.

Cooperation with organizations of workers and employers. The Committee notes that with respect to the application of Article 7 of the Convention the Government refers to Chapter 5, section 5, of the Alien Ordinance. It notes, however, that this provision only concerns consultations by the Swedish Migration Board with the Labour Market Administration or County Labour Board. Organizations of employers and employees appear to be only consulted in cases involving a question of principle or of major importance with regard to work permits. The Committee recalls that Article 7 of the Convention requires consultations with the social partners with regard to laws, regulations and other measures provided for in the Convention designed to prevent and eliminate migration in abusive conditions. While noting the involvement of the social partners in the interdepartmental working party on trafficking, the Committee asks the Government to indicate how the social partners have been or are being consulted, with respect to any measures taken to apply Articles 2 to 6 of the Convention.

Article 9(3). Costs of expulsion. The Committee notes the explanations by the Government concerning the procedures for refusal of entry or expulsion of migrants, provided for in Chapter 12, sections 18 and 19 of the Aliens Act
(SFS 2005-716). Recalling that pursuant to Article 9(3) of the Convention, in the case of expulsion, the cost shall not be borne by the migrant worker, the Committee asks the Government to indicate the legislative provisions guaranteeing that a migrant worker will not, in cases of irregularity, be required to  pay for their expulsion.

Articles 10 and 12. National policy to promote equality of opportunity and treatment. The Committee notes with interest the continuous measures taken by the Government to promote employment and integration of the immigrant population, as well as the broad package of reforms presented by the Government. It notes in particular the Joint Declaration of Intent, 2004, by the central labour market organizations and the Government, agreeing on a number of integration measures aimed at boosting employment, promoting equal opportunity and counteracting discrimination on the ground of ethnic origin. The Committee also welcomes the cooperation agreements between municipalities and county labour boards in urban districts where people with an immigrant background are over-represented, which have contributed to a faster decrease in the proportion of long-term unemployed. The Committee also welcomes the Government’s support to the central labour market organizations to disseminate information about legislation against ethnic discrimination and about the employers’ scope for using existing labour market policy instruments more effectively to facilitate the provisions of skills and enhance immigrants’ job opportunities. The Committee asks the Government to continue to provide information on the measures taken under its integration policy, and in particular any positive impact they may have had in achieving the objective of equality of opportunity and treatment between nationals and migrant workers lawfully in the country.

The Committee notes with interest the new legislation prohibiting ethnic discrimination, including the Prohibition Against Discrimination Act, DFL, 2003, and the amendments to the Working Life (Measures to counteract Discrimination on grounds of ethnic identity, religious or other convictions) Act, EDA, 1999. The Committee also notes that a parliamentary commission has been set up to consider comprehensive anti-discrimination legislation including all or most grounds of discrimination and sectors of society, and coordination or amalgamation of some or all of the “ombudsmen” institutions, and that a bill was to be introduced in Parliament in 2008. The Committee asks the Government to provide information on any progress made with regard to the adoption of the Bill concerning comprehensive anti-discrimination legislation and the reform of the “ombudsmen” institutions.

Enforcement. The Committee notes that the Aliens Appeals Board has been superseded by three migration courts and a Supreme Migration Court. It also notes that the Integration Board ceased to exist on 30 June 2007 and that the Migration Board, together with the county administrative boards, have now assumed responsibility for refugee reception. Considering the ongoing restructuring of institutions concerning anti-discrimination as well as migration, and the role played by the Integration Board in addressing discrimination, the Committee hopes that the Government will make every effort to ensure that previous efforts to address ethnic and other discrimination against the immigrant population will not be undermined.

The Committee notes that the “Ombudsman” against Ethnic Discrimination, who supervises the compliance with employers to take active measures for the prevention of ethnic and religious discrimination under the Working Life (Measures to counteract Discrimination on grounds of ethnic identity, religious or other convictions) Act, EDA, 1999, found that shortcomings exist with regard to harassment and recruitment, and that employers generally formulate policy declarations without further measures to implement their policy. The Committee asks the Government to indicate the measures taken to ensure that the active measures required under the EDA, 1999, are being formulated and effectively applied with regard to workers with an immigrant background.

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1. The Committee notes with interest the detailed information supplied in the Government’s report and the numerous initiatives taken by the Government to combat racism and discrimination in general and in the field of employment and occupation in particular. It particularly notes the Act establishing the Office of the Ombudsman Against Ethnic Discrimination (1999:131), the Anti-Discrimination Board (Instructions) Ordinance (1999:171) and the Ethnic Discrimination at Work (Prevention) Act (1999:130).

2. Despite some positive evolution, the Committee notes that non-European nationals experience problems in gaining access to the labour market: registered unemployment among non-European citizens was 24 per cent in 1999, compared with 32 per cent in 1998. As already indicated in its direct request in 2000 regarding the application of Convention No. 111, the Committee notes the stronger protection afforded by the new legislation, as well as the development of active measures to promote ethnic diversity, in order to assist migrant workers overcome discrimination. It requests the Government to supply further information on any results obtained in this respect.

3. Article 9. The Committee notes the information regarding the question of repatriation. The Committee would be grateful if the Government would provide more detailed information on the procedure of expulsion as well as the competence of, and the criteria applied by, the Migration Board and the Aliens Appeals Board.

4. Article 7. The Committee also would be grateful if the Government would indicate whether employers’ and workers’ organizations are consulted in identifying unlawful migration and the employment of migrants in abusive conditions, and the manner in which such consultation takes place.

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The Committee notes the detailed information supplied in the Government's report. It requests the Government to continue providing information on developments in the application of the Convention in the country.