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Udvalget for Udlændinge- og Integrationspolitik 2011-12
KOM (2011) 0735 Bilag 3
Offentligt

Ministry of Justice

Date:

Office:

Det Internationale Kon-

tor

Contact: Michelle Steffensen

Our ref..: 2012-308-0003

Doc.:

340992

Denmark’s response to the Commission Green Paper on the right to

Family Reunification of third-country nationals living in the European

Union

Denmark welcomes the consultation process initiated by the Commission

with the Green Paper on the right to Family Reunification of third-country

nationals living in the European Union.

From the discussions during the lunch at the informal Meeting in Copen-

hagen on 26 January 2012 it has become clear that there is not a uniform

opinion on the need for a revision of the Family Reunification Directive

(2003/86/EC) between the Member States.

Denmark therefore looks forward to learn the outcome of the consultation

process and avails itself to the Commission for cooperation on the follow-

up to the Green Paper.

Due to the Danish reservation in the area of Justice and Home Affairs

Denmark is not bound by the Family Reunification Directive.

Thus, Denmark’s response to the Green Paper will focus on the Danish

legislation and practice regarding family reunification.

It should be noted that in Danish legislation same-sex (registered) partners

and cohabitating partners are equal to married spouses. In the text below,

the term “spouse” will therefore cover all of these. Likewise the term

“marriage” also covers registered partnerships and cohabitations.

However, cohabitation is only equal to marriage, if the partners have lived

Slotsholmsgade 10

DK-1216 København K.

Phone

Fax

+45 7226 8400

+45 3393 3510

www.justitsministeriet.dk

[email protected]

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together in the same household for a longer period of time, usually 18

months.

Question 1: Who can qualify as a sponsor

Current rules in the Danish Aliens Act

According to Section 9 (1) (i) of the Danish Aliens Act the spouse in

Denmark must either be a Danish national, a national of one of the other

Nordic countries, hold a residence permit as refugee or subsidiary protec-

tion, or have held a permanent residence permit for Denmark for more

than the last 3 years.

Question 2: Eligible family members - spouses

Current rules in the Danish Aliens Act

The points system and the 24-year-rule

A general age requirement of 24 years, according to which both spouses

must be at least 24 years old before spousal reunification can be granted,

was introduced in June 2002.

An amendment to the Danish Aliens Act in 2011 (Act No 601 of 14 June

2011) altered this general 24 year-rule and introduced a point system,

which entered into force on 1 July 2011.

The applicant must – regardless of his/her age – obtain a certain amount of

points in relation to a number of criteria in order to qualify for spousal re-

unification. Points are inter alia given for work experience, language skills

and completed education. If an applicant obtains a sufficient amount of

points he/she may be granted a residence permit on the grounds of spousal

reunification.

The amount of points required differs depending on whether both spouses

are 24 years old or younger. The applicant must obtain 120 points if either

of the spouses is under the age of 24 years. The applicant must obtain 60

points, if both spouses are 24 years or older, cf. Section 9 (15) of the Dan-

ish Aliens Act.

Forced marriages

According to Section 9 (8) of the Danish Aliens Act spousal reunification

can, as a general rule,

not

be granted if it is considered doubtful that the

marriage was contracted at both parties’ own desire.

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When assessing whether a marriage was entered into against the wishes of

one or both of the spouses, the immigration authorities will consider all

relevant information in the case. If the spouses are closely related (e.g.

cousins), the immigration authorities will as a general rule assume that

they did not marry of their own free will. As a result, such applications

will usually be refused.

Previous examples of spousal reunification within the spouses’ closest

families is considered a circumstance which may indicate a forced mar-

riage.

In addition, the immigration authorities will pay particular attention to the

following indicators:



Circumstances surrounding the wedding and the spouses' personal

contact and relationship prior to the marriage



The age of the spouses



The duration of the marriage



The spouses' contact and relationship with their prospective fami-

lies-in-law prior to the marriage



The spouses' personal situations, including financial situation and

professional and educational backgrounds



Information about any contact that may have been made by either

spouse to a crisis or counselling centre

It will also be taken into consideration if the spouses' families have been

actively involved in arranging the marriage. However, a marriage will not

automatically be characterised as 'forced' merely because it takes place

with the cooperation of the two families.

If, when receiving the application, the diplomatic mission becomes suspi-

cious that a marriage may have been forced, the applicant will be inter-

viewed about the circumstances of the marriage.

Planned revision of the current rules

It is stated in the Government Platform “A Denmark that stands together”

from October 2011 that the Government inter alia wants to abolish the

point system regarding spousal reunification and reverse the 24-year rule

into the definition it had before Act No 601 of 14 June 2011.

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Effects of the rules

One of the purposes of the 2002 amendment was to enhance the efforts to

combat forced marriages. The reasoning was that the older the people in-

volved are, the better equipped they are to resist pressure to enter into an

unwanted marriage. The purpose is described in the explanatory notes to

the relevant bill (Bill No 152 of 28 February 2002).

A study from 2009

indicates that the introduction of a 24 year age limit in

connection to family reunification has helped to further a progress towards

a higher age of the partners at the time of marriage. In the report experts

state that in their opinion being in the early-mid 20s rather than in the late

teens women are found better able to argue their way out of an unwanted

marriage.

Other efforts to prevent forced marriages

Denmark has implemented several initiatives outside the regulation of ac-

cess to family reunification to prevent forced marriages and other honour-

related conflicts.

The Danish Immigration Service has an advisory service for young people

under the age of 24, who is facing a forced marriage or an arranged mar-

riage, which is not fully according to the young person’s own wishes.

Young persons, who have not decided whether they want to enter into an

arranged marriage, can call the Immigration Service for guidance.

The municipalities are also obligated under the Danish Act on Social Ser-

vices to offer guidance and support to young persons in order to prevent

social problems. This obligation applies inter alia in cases of forced mar-

riages and family reunification.

Other initiatives include a special hotline offering guidance and support to

young persons facing forced marriages or other honour related conflicts,

mediation for families involved in forced marriages, and a shelter for

young women and young couples, where they can seek refuge from a

forced marriage or other honour related conflicts.

”Ændrede

familiesammenføringsregler – Hvad har de nye regler betydet for pardannel-

sesmønstret blandt etniske minoriteter?”, SFI, October 2009

http://www.sfi.dk/rapportoplysninger-4681.aspx?Action=1&NewsId=2337&PID=9267

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Evidence of the problem with forced marriages

There is no clear and complete evidence on forced marriages, because not

all cases of forced marriages are – inherently – reported to the authorities.

There exists therefore no exact number on the amount of forced marriages.

The Danish police registers crimes, which could be honour related. In

2009 the police registered 194 such cases.

Honour related conflicts includes forced marriages and inter alia threats

and violence in the name of honour.

The Women Shelter Organisation (LOKK) in Denmark is responsible for

the hotline about honour related conflicts and a national consulting unit,

which can offer advice and help to youngsters, who experience honour re-

lated conflicts. In 2011 LOKK had 1035 inquiries about honour related

conflicts, 833 inquiries in 2010 and 440 inquiries in 2009. The rising

amount on inquiries is seen as an indicator of growing awareness among

the youngsters on their own rights and the possibilities of getting help from

the authorities.

In 2011 the Ministry of Social Affairs and Integration published a report

on social control with youngsters in immigrant families. The report was

based on a survey among almost 3000 youngsters in Denmark between the

ages of 15 to 20 years. The report concludes that around 25 % of the young

immigrants and descendants experience their families taking part in choos-

ing their spouse and around 25 % are afraid that their families will choose

a spouse for them against their own will.

There have been cases where one of the spouses confidentially informed

the Danish Immigration Service about a forced marriage and requested that

the application for spousal reunification be refused.

During 2008-2011 the Danish Immigration Service has refused a total of

235 cases on the grounds that it was not considered indisputable that the

marriage was contracted or the cohabitation was established at both par-

ties’ own desire. Statistically it is not possible to differ between refusals

based on evidence and refusals based on an assumption of forced marriag-

es (e.g. under the ‘cousin-rule’).

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The refusals are divided over the three years as follows:

Year

2008

2009

2010

No. of refusals according to Section 9 (8) of the Danish Aliens Act.

41 (out of a total of 842 refusals for family reunification with a

spouse/partner)

88 (out of a total of 1733 refusals for family reunification with a

spouse/partner)

106 (out of a total of 1863 refusals for family reunification with a

spouse/partner)

The numbers are based on final registrations in the Aliens Register for 2008-2010. A degree of un-

certainty is connected to the numbers as the Aliens Register is a recording and case management

system and not a statistical system as such.

Question 3: Eligible family members –children

Current rules in the Danish Aliens Act

Age limit

In order for a child to be granted a residence permit on the grounds of fam-

ily reunification, it is normally a condition that the child is under the age of

15, cf. Section 9 (1) (ii) of the Danish Aliens Act. However, if special rea-

sons apply – such as considerations for the unity of the family – it is possi-

ble for a child between the ages of 15 and 18 to be granted family reunifi-

cation in Denmark.

The age limit was reduced from 18 years to 15 years in 2004 by an

amendment to the Danish Aliens Act. The purpose of the lowering of the

age limit was to counteract both re-education travels and incidents where

parents deliberately choose to let a child stay in another country until the

child is almost an adult. Another purpose was to ensure that children

moved to Denmark at a young age in order to have as much of their up-

bringing in Denmark as possible and thus have the opportunity to achieve

successful integration in Denmark. This is stated in the explanatory notes

to the relevant bill (Bill No 171 of 20 February 2004).

Potential for successful integration

In certain cases a special so-called attachment requirement applies. This

requirement stipulates that a residence permit will, as a general rule, only

be granted if the child has, or has the opportunity to achieve, ties to Den-

mark, which are sufficient to constitute a basis for successful integration in

Denmark, cf. Section 9 (17) of the Danish Aliens Act.

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This requirement applies if the other parent is still living in the child’s

country of origin – or another country where the child is also living – and

if the child’s application for a residence permit is submitted more than two

years after the parent in Denmark meets the requirements for family reuni-

fication with the child.

When assessing whether this requirement is met, attention is paid to the

length and nature of the child’s stay in the country of origin and his/her at-

tachment to the parent there. Furthermore, the child’s age and previous

visits to Denmark, e.g. visa stays, are considered. Attention is also paid to

inter alia how well the parent in Denmark is integrated and to his/her in-

tentions and willingness to let the child stay in the country of origin.

Planned revision of the current rules

It is stated in the Government Platform from October 2011 that the Gov-

ernment inter alia wants to change the current rules regarding family reuni-

fication with children.

On 9 February 2012 the Danish government and the parties Enhedslisten

and Liberal Alliance concluded an agreement regarding family reunifica-

tion with children. The agreement aims at balancing the rules regarding

family reunification with children better and strengthening the possibilities

of obtaining a residence permit on this basis.

The main points of the agreement concerns a change to the application of

the special requirement regarding a child’s “potential for successful inte-

gration”, which only applies to situations where a child's other parent is

still living in the home country, and the child's application for a residence

permit is submitted more than two years after the parent in Denmark meets

the requirements for family reunification with the child. Thus, this re-

quirement is no longer going to apply to children aged 8 or younger. Fur-

thermore, when the immigration authorities consider whether a child meets

this requirement, special attention will in future be paid to the situation of

the parent in Denmark in terms of employment and Danish language profi-

ciency. In the future, greater importance will also be attached to the will-

ingness of the parent in the home country to care for the child.

A bill regarding a revision of the rules regarding the family reunification

with children is expected to be presented in the Danish Parliament during

the present sitting.

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Question 4: Eligible family members – other family

Current rules in the Danish Aliens Act

Spousal reunification is regulated in Section 9 (1) (i) of the Danish Aliens

Act.

Family reunification with children under the age of 15 is regulated in Sec-

tion 9 (1) (ii) of the Danish Aliens Act. Residence permits for children for

the purpose of adoption, foster family relationship etc. is regulated in Sec-

tion 9 (1) (iii) of the Danish Aliens Act.

Other family members – e.g. children over 15 years of age or parents

whose adult children live in Denmark – can apply for family reunification

with a person residing in Denmark under Section 9 c (1) of the Danish Al-

iens Act. According to Section 9 c (1), a residence permit can only be

granted if special reasons, such as considerations for the unity of the fami-

ly, apply.

Question 5: Integration measures

Current rules in the Danish Aliens Act

Attachment requirement

It is, as a general rule, a condition for obtaining spousal reunification that

the spouses combined have significantly greater ties to Denmark than to

any other country, cf. Section 9 (7) of the Danish Aliens Act.

However, this so-called attachment requirement does not apply if the

spouse in Denmark has held Danish citizenship for more than 28 years.

Nor does the requirement apply if the spouse in Denmark was either born

or raised in Denmark or has lived in Denmark since early childhood and

has resided legally in Denmark for more than 28 years.

The purpose of this requirement is to further integration. This is stated in

the explanatory notes to the relevant bill (Bill No 208 of 29 February 2000,

which contained the proposal for the original attachment requirement

which entered into force in June 2000 and which has subsequently been

amended).

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Self-support requirement

It is, as a general rule, a condition for obtaining spousal reunification that

the spouse in Denmark is able to support him/herself. This means that the

spouse in Denmark may not have received public support under the terms

of the Active Social Policy Act or the Integration Act for the past three

years.

Moreover, it is a condition for spousal reunification that neither of the

spouses receives any public support under the terms of the Active Social

Policy Act or the Integration Act until a permanent residence permit is is-

sued to the foreign spouse, cf. Section 9 (5) of the Danish Aliens Act.

The purpose of this self-support requirement is inter alia to enhance integra-

tion. It is stated in the explanatory notes to Bill No 152 of 28 February

2002 that a person living in Denmark will generally have the best possi-

bilities of making a positive contribution to the integration of his/her for-

eign spouse into the Danish society and the Danish labour market, if

he/she has work him/herself and has had so for a period of time. The pur-

pose of the self-support requirement is also stated in the explanatory notes

to Bill No 17 of 4 October 2006.

If special reasons apply, a child’s residence permit can be made contingent

upon the parent in Denmark documenting that he/she can support

him/herself. This requirement will be met if the parent in Denmark does

not receive public support under the terms of the Active Social Policy Act

or the Integration Act until the time when child is granted a permanent res-

idence permit, cf. Section 9(16) of the Danish Aliens Act.

The collateral

In order for a third country national to be granted a resident permit on the

basis of spousal reunification, the spouse in Denmark must post

DKK 100,000 (July 2011 level) in collateral in the form of a bank guaran-

tee, cf. Section 9 (4) of the Danish Aliens Act.

This guarantee is designed to cover any future public support paid to the

foreign spouse by his/her municipality under the terms of the Active Social

Policy Act or the Integration Act after he/she relocates to Denmark.

In order to meet this collateral requirement, a Danish financial institution

must issue a guarantee, known as a demand guarantee.

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Accommodation requirement

It is in general a condition for obtaining spousal reunification that the

spouse in Denmark documents that he/she has accommodation of an ade-

quate size at his/her disposal, cf. Section 9 (6) of the Danish Aliens Act.

The purpose of this accommodation requirement is to ensure a good starting

point for a successful integration of the family member wanting to be reu-

nited with their family in Denmark and of those family members already

residing in Denmark.

Furthermore, this requirement serves to ensure that a family reunion can be

implemented on a secure residential basis and to avoid that people who re-

sides in Denmark gets social housing problems. This is stated in the ex-

planatory notes to the relevant bill (Bill No 208 of 29 February 2000).

If special reasons apply, a child's residence permit can be made contingent

upon the parent in Denmark documenting that he/she has adequate ac-

commodation at his/her disposal, cf. Section 9 (16) of the Danish Aliens

Act.

Immigration test

A third country national who applies for spousal reunification must nor-

mally pass an immigration test in order to be granted spousal reunification,

cf. Section 9(2) of the Danish Aliens Act.

The immigration test is an oral test consisting of two parts: a language test

testing the applicant’s Danish language skills and a knowledge test testing

the applicant’s knowledge about Denmark and Danish society.

Declaration of active participation

According to Section 9 (2) of the Danish Aliens Act it is a condition for

spousal reunification that the applicant and spouse in Denmark both sign a

declaration stating that they will, to the best of their ability, both make ac-

tive efforts to ensure that the foreign spouse and any accompanying chil-

dren will acquire Danish language skills and integrate into Danish society.

Dispensation

One or more of the above mentioned requirements can be suspended if

special reasons apply. This could be the case, if the spouse in Denmark:



is a refugee or has protected status and still risks persecution in

his/her country of origin.

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

has children under 18 living in the home who have formed an indi-

vidual attachment to Denmark, or has children from a previous re-

lationship and has custody of the child or has visitation rights and

sees the child on a regular basis.

is seriously ill.

The immigration authorities will in the process of handling an application

for family reunification assess whether or not one or more of the condi-

tions can be suspended.

Planned revision of the current rules

It is stated in the Government Platform from October 2011 that the Gov-

ernment inter alia things wants to change the current rules regarding

spousal reunification.

The Government wants to change the attachment requirement to the defini-

tion it had before Act No 601 of 14 June 2011 entered into force, change

the 28-year rule, which dispenses from the attachment requirement, to a

26-year rule, lower the amount that the spouse in Denmark has to post as

collateral from DKK 100.000 to DKK 50.000, and abolish the immigration

test.

It is also stated in the Government Platform that migrants, who has been

issued with a residence permit based on family reunification, should re-

ceive Danish language tuition as soon as they move to Denmark and that

they should pass a Danish language test.

Effects of the rules

A report published by the previous Ministry for Refugee, Immigration and

Integration Affairs in August 2011

shows that Danish language skills are

considered essential for a person to be able to relate to politics and the

Danish society in general.

The report also shows that mastering the Danish language indirectly fur-

thers participation in the society through employment, and that the chance

of getting a better position and higher income is improved by better

knowledge of the Danish language.

”Medborgerskab i Danmark. Regeringens arbejdsgruppe for bedre integration”. Ministe-

riet for Flygtninge, Indvandrere og Integration, August 2011.

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Question 6: Waiting period

Denmark does not apply any waiting period.

Question 7: Duration of the residence permit

Current rules in the Danish Aliens Act

Period of validity of residence permits to a spouse/partner

In order for a third country national to be granted a residence permit on

grounds of family reunification the spouse living in Denmark must either

be a Danish national, a national of one of the other Nordic countries, hold

a Danish residence permit granted on the grounds of asylum or subsidiary

protection or have held a permanent Danish residence permit for the past

three years or more, cf. Section 9 (1) (i) of the Danish Aliens Act.

A time-limited residence permit based on spousal reunification is issued

for up to two years at a time, and after four years for up to four years at a

time, and after eight years for up to eight years at a time, cf. Section 25 (2)

of the Danish Aliens Order.

Period of validity of residence permits to family reunited children

In order for a child to be granted family reunification with a parent in

Denmark, the parent in Denmark must either be a Danish national, a na-

tional of one of the other Nordic countries, hold a residence permit in

Denmark as a refugee or with protected status, hold a permanent residence

in Denmark, or hold a temporary residence permit in Denmark, which can

be made permanent, cf. Section 9 (1) (ii) of the Danish Aliens Act.

A time-limited residence permit under section 9(1) (ii) of the Danish Al-

iens Act for children under the age of 18 is issued until the child’s 18

birthday, but only until expiry of the period for which one of or both the

persons having custody of it hold a residence permit for Denmark, cf. Sec-

tion 25 (3) of the Danish Aliens Order.

Questions 8 and 9: Refugees and beneficiaries of subsidiary protection

Current rules in the Danish Aliens Act

If the spouse in Denmark holds a residence permit as a refugee or with

subsidiary protection (Section 7 or 8 of the Danish Aliens Act) the immi-

gration authorities may defer one or more requirements for spousal reuni-

fication.

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The conditions for spousal reunification are deferred if the spouse in Den-

mark cannot be referred to exercise his/her family life in the applicant's

country of origin or country of residence. This may e.g. be the case if the

spouse in Denmark has applied for spousal reunification with his/her

spouse in the country of origin immediately after being granted a residence

permit as a refugee or with subsidiary protection.

This may also be the case if the spouse in Denmark has been granted a res-

idence permit as a refugee or with protected status and subsequently to

his/her entry into Denmark gets married and does not have the possibility

to exercise his/her family life with the applicant in the country of origin

because the spouse in Denmark risks persecution, death penalty or being

subjected to torture or inhuman or degrading treatment or punishment.

It should be noted though, that the mere fact, that the spouse in Denmark

has been granted a residence permit as a refugee or with subsidiary protec-

tion does not in itself lead to the deferral of the requirements for spousal

reunification. The immigration authorities will in these cases re-examine

whether the spouse in Denmark has the possibility to exercise his/her fami-

ly life with the applicant in the country of origin or if he/she will still risk

persecution, death penalty or being subjected to torture or inhuman or de-

grading treatment or punishment if he/she should return to his/her country

of origin.

Question 10: Fraud

Current rules in the Danish Aliens Act

According to Section 40 (1) of the Danish Aliens Act a foreigner shall

provide such information as is required for deciding whether a permit pur-

suant to the Danish Aliens Act can be issued.

Upon receipt of an application for family reunification the Danish immi-

gration authorities assesses in each case whether the applicant and the host

living in Denmark has provided accurate and complete information for the

processing of the application. If the authorities find that incorrect infor-

mation of relevance to the processing has deliberately been submitted, the

authorities will, as a general rule, file a police report for violation of Sec-

tion 161 of the Danish Penal Code.

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For the examination of an application for a family reunification permit, the

immigration authorities may require the applicant and the person with

whom the applicant states to be related as a basis for the application, to

participate in a DNA examination with a view to determining the family

tie, if such tie cannot otherwise be sufficiently evidenced, cf. Section 40 c

of the Danish Aliens Act.

When processing applications for family reunification the immigration au-

thorities can also decide to request an age test. A request regarding an age

test is relevant if doubt arises as to whether a child’s correct age has been

given.

If the DNA test and/or the age test leads to the conclusion that the family

ties are not considered proven, or that the child is found to not meet the

age limit as described above under Q3, the application will be refused as

not meeting the requirements for family reunification. Thus, in these cases

the refusal will not be given with reference to the fraud.

Evidence of the problem with fraud

Fraud in relation to family reunification under the Danish legislation

As mentioned above fraudulent behaviour in connection to an application

for family reunification will lead to the filing of a police report and a re-

fusal on the basis of the applicant not qualifying for family reunification –

and not with reference to the fraud in itself.

Hence, it is not possible to produce reliable statistics on the size of this

problem.

Fraud in relation to family reunification under the Free Movement Di-

rective (2004/38/EC)

Information about fraud and abuse in connection to applications for family

reunification under the Free Movement Directive (2004/38/EC) has only

been registered in Denmark since 2008, causing an insufficient amount of

data to draw any general and reliable conclusions concerning problems

with fraud and abuse in relation to family reunification according to EU

legislation.

In the following paragraphs, please note that Denmark makes a distinction

between primary and secondary right of free movement. The primary right

of free movement relates to an EU citizen and his family members’ right to

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free movement in Denmark. (These cases are handled by the Regional

State Administration.) The secondary right of free movement refers to the

situation, where a Danish citizen, who has exercised his right of free

movement in another EU/EEA member state or Switzerland, can be eligi-

ble for family reunification in Denmark under EU law with his accompa-

nying non-Danish family members. (These cases are handled by the Dan-

ish Immigration Service.)

Concerning fraud in regard to the primary right of free movement it is not-

ed that information on e.g. a marriage between an EU citizen from one of

the "new" Member States and e.g. a Nigerian national shortly prior to the

expiry of the latter’s residence permit, can give reason to suspect fraud and

lead to further investigations.

As regards the secondary right of free movement no general information

about fraud and abuse can be derived. However, it should be noted that

many applications are refused with reference to the fact that the Danish cit-

izen has not been able to demonstrate genuine and effective residence in

another Member State. This is generally not considered fraud or abuse, as

it is often due to a lack of documentation, which can be rectified by the

submission of appropriate documentation at a later stage or in connection

with a new application. Such cases are therefore not included in statements

of cases with fraud and abuse.

Concerning abuse in terms of document fraud, both actual false documents

and authentic documents based on fraudulent information is seen. In par-

ticular the latter is difficult to detect.

In 2009 and 2011 respectively the Danish immigration authorities con-

ducted a qualitative study on fraud and abuse in cases regarding family re-

unification in accordance with the EU legislation on the right of free

movement. The purpose of the study was to be better able to tackle fraud

and abuse. One result of the study is that it is often difficult to prove sus-

pected fraud or abuse, as it is not possible to set clear criteria for assessing

whether a marriage is a sham marriage. Thus, in each case a specific and

individual assessment must be conducted.

During 2010 and the first six months of 2011 only one application for resi-

dence permit in accordance with the EU legislation on the right of free

movement (primary right of free movement) was refused on grounds of

fraud. This was due to document fraud.

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Typically these cases have concerned so-called “look-a-likes”, where a

third country citizen has presented a genuine personal identification docu-

ment of an EU-citizen, who resembles the applicant or by exchanging the

photo in the passport. Under the secondary right to free movement no de-

cision to deny right of entry or residence on the grounds of document fraud

has been registered in 2010 and the first six months of 2011.

Question 11: Marriages of convenience

Current rules in the Danish Aliens Act

According to Section 9 (9) of the Danish Aliens Act a residence permit

based on spousal reunification cannot be issued if there are definite rea-

sons for assuming that the decisive purpose of contracting the marriage or

establishing the cohabitation is to obtain a residence permit (sham mar-

riage).

When assessing if a marriage is a sham marriage the following six indica-

tors are considered:

a. The spouses have not lived together at the same address.

b. The spouses cannot communicate in the same language.

c. A big age difference.

d. The degree of personal knowledge of the other spouse.

e. The prior marriages of the spouses (if any).

f. Unusual travel patterns.

Other indicators that the marriage is not genuine can also be considered.

Detection of abuse in the form of relationships of convenience is based on

compliance of at least three of the six indicators listed above.

If the immigrations authorities suspect a sham marriage interviews will be

conducted with the spouses in order to assess if the spouses have the level

of personal knowledge of each other that is to be expected (indicator d).

The spouses’ prior marriages (indicator e) can be of relevance if the spouse

living in Denmark has previously been married to a third country national

and was divorced from this person soon after he/she was granted a perma-

nent residence permit.

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If the immigration authorities suspect a sham marriage, but do not have

sufficient grounds to refuse the application for family reunification, the

immigration authorities can request the police to control whether the

spouses are actually living together. This control will take place some time

after the granting of the residence permit and if it shows that the spouses

do not share a household the immigration authorities can consider to re-

voke the residence permit. If the residence permit is revoked it will be with

reference to the lack of cohabitation, not that the marriage is considered a

sham marriage.

Evidence of the problem with fraud

Fraud in relation to family reunification under the Danish legislation

The Danish immigration authorities do not have complete information on

the size of the problem with sham marriages. It is generally considered that

there is a considerable amount of cases, which are not known to the au-

thorities, as the people involved will try to deflect from any indication of a

sham marriage.

During 2008-2011 the Danish Immigration Service has rejected a total of

96 cases with reference to the fact that there were reasons to consider that

the decisive purpose of contracting the marriage or establishing the cohabi-

tation is to obtain a residence permit.

The numbers below indicate an increase of cases in 2009 and 2010, which

is due to an increased focus on this problem and increased efforts to identi-

fy the cases and organise the interviews.

The refusals are divided over the three years as follows:

Year

2008

2009

2010

No. of refusals according to Section 9 (9) of the Danish Aliens Act.

5 (out of a total of 842 refusals for family reunification with a

spouse/partner)

31 (out of a total of 1733 refusals for family reunification with a

spouse/partner)

60 (out of a total of 1863 refusals for family reunification with a

spouse/partner)

The numbers are based on final registrations in the Aliens Register for 2008-2010. A degree of un-

certainty is connected to the numbers as the Aliens Register is a recording and case management

system and not a statistical system as such.

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Fraud in relation to family reunification under the Free Movement Di-

rective (2004/38/EC)

As mentioned, the Danish immigration authorities in 2009 and 2011 re-

spectively conducted a qualitative study on fraud and abuse in cases re-

garding family reunification in accordance with the EU legislation on the

right of free movement. The purpose of the study was to be better able to

tackle fraud and abuse. One result of the study is that it can often be diffi-

cult to prove suspected fraud or abuse, as it is not possible to set clear cri-

teria, which can be used to assess whether there is a sham marriage. Thus,

in each case a specific and individual assessment must be conducted.

In 2010 and the first six months of 2011eight cases were registered as re-

fusals on the grounds that the marriage was considered a sham marriage.

With such a small amount – where the cases are also different – it is not

possible to deduce any general trends.

Question 12: Fees

Current rules in the Danish Aliens Act

According to Section 9 h of the Danish Aliens Act a processing fee will as

a general rule be charged when a third country national applies for family

reunification.

The fee will be deferred if such a requirement could interfere with Den-

mark's international obligations or EU regulation.

Planned revision of the current rules

It is stated in the Government Platform from October 2011 that the Gov-

ernment inter alia wants to abolish the fees regarding family reunification.

The application fees for residence permits for family members of a foreign

national who is to work or study in Denmark are not part of the planned

revision but are currently maintained as fees equivalent to the administra-

tive expenses for processing the applications.

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Question 13: Length of procedure

Current processing times for applications for family reunification (service

goals)

For the most common types of applications the immigration authorities

have maximum time limits for how long applicants should expect to have

to wait for a decision (service goals). The stated maximum processing time

is calculated from the date when the immigration authorities receive a fully

completed application. An application is considered fully completed if

it contains all required information, has been signed correctly and includes

the required documentation.

Simple applications are expected to be processed within a maximum of

three months. An application is considered simple if it appears that the

normal conditions for family reunification are met or, conversely, that a

basic requirement is not met – for example if the marriage is invalid.

Complicated applications are expected to be processed within a maximum

of seven months. An application is considered complicated if it requires

further investigation in order to ascertain if the normal requirements for

family reunification are met, or if there is a need to carry out further en-

quiries, such as to confirm familial relations or age.

Q14: Horizontal clauses

Current rules in the Danish Aliens Act

It is stipulated in Section 9 (19) of the Danish Aliens Act that a child can-

not be granted a residence permit on the grounds of family reunification if

it is clearly at odds with the interests of the child.

The consideration for the family unity is directly mentioned in the legisla-

tion regarding family reunification in Sections 9 and 9 c (1) of the Danish

Aliens Act.