EU Law Takes Precedence Over Swedish Migration Law

When EU law opens doors that the Swedish Migration Agency tries to keep closed

EU law is superior to Swedish migration law. That is fact

Yet we see daily decisions where the Swedish Migration Agency apparently disregards EU law, free movement and the derived rights that come automatically with EU membership. For many clients it is only when EU law is identified and invoked — when it is activated — that an "impossible" case suddenly acquires a clear, legally sound solution with a well-defined, solution-oriented strategy.

At AdamLaw Juristbyrå we do not rely solely on national migration law in our differential legal analysis; we use more than the Aliens Act (2005:716) in our methodological approach. We invoke EU law where it must be applied — in the correct way — and ensure that Swedish migration law yields when it conflicts with EU law.

What Does the Primacy of EU Law Mean?

The principle of EU law's precedence entails that:

• When a situation falls within the scope of EU law, Swedish rules and laws are subordinated and must not obstruct or complicate the exercise of an EU citizen's rights.

• Courts and authorities must disregard national law that conflicts with EU law — including decisions by the Swedish Migration Agency.

• The Swedish Migration Agency is obliged to examine whether EU law applies when assessing a case, even if the applicant has not explicitly invoked it. 

This applies, among others, to:

• Free movement for EU citizens and their family members 

• Family reunification under the framework of Directive 2004/38/EC 

• Surinder-Singh-scenarios (for example a Swedish citizen who moves to another EU country and later returns) 

• Derived rights for third-country nationals connected to an EU citizen's free movement 
  
  

Once EU law applies, a Swedish refusal may in practice lose its relevance. The question ceases to be "what does the Migration Agency say?" and becomes "what does EU law say?".

Section 23 of the Administrative Procedure Act (Förvaltningslag 2017:900) – Duty to Investigate and Communicate

Pursuant to Section 23 of the Swedish Administrative Procedure Act the Migration Agency has a clear duty to:

• Ensure that the case is sufficiently investigated before making a decision. 

• Communicate with the applicant as required by the nature of the case until the agency has a basis to make a decision on well-investigated material. 

• Consider also EU-law circumstances evident from the case file — not only what conveniently fits into Swedish bureaucratic standard forms and templates. 

This duty applies also when the investigation is carried out via Swedish embassies and consulates. Deficiencies in service, flawed residence-investigations or passivity from the authority's side are not "minor mistakes" — they represent legal flaws that may decisively affect the outcome.

When the Migration Agency fails to investigate EU law, fails to communicate properly or applies the wrong legislation, there is a clear ground for reconsideration or appeal. 

Common Errors We Challenge

In many of the cases we take over from other, less specialised counsel, we often observe the same pattern: 

• The authority has applied only the Aliens Act — even though EU law is clearly applicable 

• Refusals are justified with national rules that may not restrict union-law rights for the individual 

• No real assessment of free movement, derived rights or remaining Surinder-Singh-rights 

In these cases EU law makes the difference between a "final refusal" and a well-founded appeal, reconsideration or new application with real prospects of success. 

How AdamLaw Juristbyrå Applies Its Immigration Competence and EU-Law Expertise

We:

• Map whether your case is in fact an EU-law case, not just an ordinary residence-permit case; analyse whether there is a "hidden" EU-law right and search for alternative solutions via applicable CJEU jurisprudence (so-called "C-cases"). 

• Build arguments directly on EU law, directives, CJEU case law and relevant Swedish higher-court judgments. 

• Point out flaws in the Migration Agency's investigation and communication under Section 23 of the Administrative Procedure Act, if such flaws exist. 

• Challenge decisions where Swedish national rules have been wrongly prioritized over EU law. 

• Successfully carry cases before the migration courts when the authority refuses to apply EU law correctly in a reconsideration. 

Our aim is straightforward: to ensure that your EU-law rights are not only theoretical, but effective in practice.

Does Your Case Need an EU-Law Assessment?

If you have:

• Received a refusal despite a connection to an EU citizen or free-movement rights

• Received a decision in which the Migration Agency does not even mention EU law

• A case where an embassy or consulate has conducted a flawed investigation

…then you need representation that works methodically with EU law — not just with Swedish standard provisions.

Contact AdamLaw for a precise EU-law review of your case and a clear procedural strategy.

— Adam M. Lindström & Lyle Castro Nuñez