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May 16—An EU-wide requirement that non EU citizens cannot be offered jobs in EU nations unless the position has first been advertised on a public platform is not satisfied by posts to LinkedIn, a Swedish court ruled April 28.
Under Sweden's Aliens Act (2005:716), non-EU citizens are permitted to apply for and take up jobs in Sweden. In keeping with EU law, however, employers must ensure that any position offered to a non-EU citizen has been publicly advertised for 10 days. The court was asked to decide whether LinkedIn constitutes a public platform in this context.
The employee, originally from Bangladesh, entered Sweden as a university student and was granted a residence permit that did not allow him to work. During the summer of 2014, he successfully applied for a job at a financial services bureau after responding to an advertisement on LinkedIn. Shortly after starting work in August 2014, the man submitted an application to the Swedish Migration Authority for an adjustment of status. In an Oct. 13, 2015, ruling (UM 5334-15), the agency rejected the man's application because in its view publication of an advertisement on LinkedIn did not constitute a public platform available to all citizens of the EU, the European Economic Area and Switzerland, as required by law.
The man appealed the decision, contending that LinkedIn's global reach and estimated 300 million global users qualifies it as a public platform. On Feb. 11, 2016, Sweden's Migration Court rejected the appeal (UM 5334-15), confirming the Migration Agency's view that the law should be understood to refer solely to the European Job Mobility Portal (EURES). According to the court, the job advertisement should have been posted on the website of the Swedish Public Employment Service, which is connected directly to EURES. A subsequent request for the Supreme Administrative Court to hear the case was rejected on April 28, and on May 10 the man was deported.
Carl-Owe Olsson of the Collin Foyen & Co legal firm, who represented the man, said that in his opinion the LinkedIn posting had made the position publicly visible within the EU and had thus fulfilled all the employer's legal obligations.
“As interpreted by Swedish law, the rules are an absolute hindrance to non-EU citizens who are looking for work,” Olsson told Bloomberg BNA. “It narrows down their opportunities to get a work permit. Also, they face the risk of rejection because of a lack of understanding of the system. Through this interpretation, the Swedish Public Employment Service has been awarded a status that can be almost compared to a monopoly when it comes to making an advertisement visible to all EU citizens.”
“The law needs to be changed or at least the interpretation of the law needs to be changed,” Olsson said. “Given this outcome, I would not advise non-EU citizens to use LinkedIn to look for jobs in the EU, unless they have also been advertised in the EURES.”
Carl Strom, an employment advisor at Bird & Bird legal firm, told Bloomberg BNA May 11 that the rules per se are not a hindrance for non-EU citizens seeking to apply for work within Sweden or the EU, and in his firm's opinion the case illustrates the importance of correctly advertising vacant job positions.
“It may be noted that the requirement is only to advertise the position,” Strom said. “There is no requirement to actually employ Swedish or EEA citizens. In practice, employers can still choose to employ whichever candidate they want, as long as such a decision is not, for example, discriminatory. However, it is important that the employer and employee ensure that the position has also been advertised with EURES or the Swedish Public Employment Service.”
“If the position has for some reason not been advertised on EURES and the employer has decided to hire a non-EEA candidate, the employer should advertise the position for the required period of 10 days before initiating the work permit application process,” Strom said. “As long as this is done, it does not matter if the employee first found out about the position from, for example, LinkedIn.”
“As the rule is based on EU regulations, we do not believe that there will be any change in the near future,” Strom said. “But we agree that the current regulations are not very flexible. It is therefore important to ensure that a work permit application is always filed by the book. Employers who wish to hire non-EEA citizens must always make sure that they advertise within the proper platforms and for the required period.”
Beyond stating that it was a “very unfortunate case,” a LinkedIn spokesman would not comment on the ruling's implications when contacted by Bloomberg BNA May 11.
To contact the reporter on this story: Marcus Hoy in Copenhagen at firstname.lastname@example.org
To contact the editor responsible for this story: Rick Vollmar at email@example.com
For more information on Swedish HR law and regulation, see the Sweden primer.
The Feb. 11 Migration Court ruling is available in Swedish
The April 28 Supreme Administrative Court decision is available in Swedish
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