Chapter XX DENMARK INTRODUCTION TO THE IMMIGRATION FRAMEWORK

Transcription

1 Chapter XX DENMARK Jeppe Høyer Jørgensen, Julie Mønsted and Lykke Asmussen 1 I INTRODUCTION TO THE IMMIGRATION FRAMEWORK In Denmark, 2015 is a parliamentary election year and one of the main topics of this election is going to be Danish immigration policy. As a result of the massive increase in immigration of foreign workers and professionals from the other EU Member States and the huge number (14,675) 2 of refugees that applied for asylum in Denmark in 2014 mainly from Syria and Eritrea immigration is now more topical than ever in Danish politics. The political discussion will also concern the consistent amount of approximately 135,000 3 unemployed Danish residents who are capable of taking full-time employment but who are instead on social security benefits and the question of whether their unemployment has been caused by the massive numbers of workers from Poland, Bulgaria and Romania especially. In 2014 the number of workers from eastern Europe who were granted work and residence permits in Denmark increased by approximately 10 per cent from 82,625 to 90, In light, however, of the financial crisis in Europe, ongoing since 2008, it has also become very clear that some sectors in Denmark, now more than ever, need highly skilled labour in order to compete with companies in Asia, for example. The latest amendments to the Danish Aliens Act in 2007, expanding the possibilities for non-eu workers to obtain Danish work and residence permits, have proven not to be as effective 1 Jeppe Høyer Jørgensen is a partner, Julie Mønsted is a senior associate and Lykke Asmussen is a junior associate at Lett Law Firm P/S. 2 (including_first_time_asylum_applicants),_q4_2013_%e2%80%93_q4_ 2014.png senestetalpaaudlomr.pdf. 1

2 as hoped for, since 42 per cent of the workers who are currently working in Denmark on the basis of the Danish Greencard scheme are working as unskilled employees, 28 per cent are unemployed and living off social security benefits and 40 per cent of all workers under the Greencard scheme are earning less than 27,000, suggesting that they are not employed in ways intended by the implementation of the scheme in Workers and professionals from Sweden, Iceland, Finland and Norway are, pursuant to the Nordic Agreement of 1962, 6 free to reside and work in Denmark without applying for any work or residence permit at first. Citizens from other EU Member States, Swiss citizens or citizens of Member States covered by the Agreement on the European Economic Area (EEA) may freely enter Denmark and reside for up to three months without requiring any permits. Workers and professionals from the aforementioned EU Member States and the EEA States who seek employment in Denmark may even reside in Denmark for up to six months without requiring any permit of residence. The periods of three and six months are calculated from the date of entry. By the end of these periods, all citizens from the EU, EEA, Switzerland and their accompanying family must obtain a registration certificate. While the citizens of EU Member States, EEA, Switzerland and the aforementioned Nordic countries may rather freely enter, reside and work in Denmark without obtaining any work or residence permit at first, residence permits are issued to citizens outside the EU or EEA ( third-country citizens) only on the basis of employment or activities as self-employed persons. These permits are, in accordance with the Danish Aliens Act, issued only to highly skilled workers and professionals with the right qualifications and pursuant to various types of schemes, for example, the Greencard scheme. i Legislation and policy Even though Denmark became a member of the EU in 1973, it still has a legal reservation as regards legislation on immigration, which means that, whereas most of the EU Member States generally have harmonised legislation on immigration, Denmark is still in this area able to adopt national legislation without any interference from the EU. Therefore, key Danish legislation on immigration consists of Danish legislation as well as EU legislation: a EU rules, Articles 45 and 56 of the Treaty on Functioning of the European Union (TFEU) on the freedom of movement for persons and services; b the Executive Order on Residence in Denmark for Aliens Falling within the Rules of the EU; c the Danish Aliens Act 2014; d the Danish Act on the Posting of Workers 2014; and e the Nordic Agreement. 5 See the preparatory works to the amendments of the Danish Aliens Act, L61. 6 An agreement to ensure a fully integrated Nordic labour market. 2

3 ii The immigration authorities Denmark In Denmark the case handling of employment-based residence and work permits are processed by an agency under the Ministry of Employment the Danish Agency for Labour Market and Recruitment. The overall objective of this Agency is to help ensure that Denmark has a flexible, dynamic and efficient labour market and to support the efforts to recruit highly qualified professionals from outside Denmark. The Agency now has three regional offices located in Aalborg, Odense and Roskilde. Besides the Agency for Labour Market and Recruitment, several other authorities, including the Danish police, the tax authorities and the Danish Working Environment Authority ensure that Danish companies comply with the legislation on immigration. The registration certificate to be obtained by EU or EEA citizens as mentioned earlier is obtained from the regional state administrations. iii Exemptions and favoured industries Certain groups of third-country citizens do not, regardless of their citizenship outside of the EU, EEA and Switzerland, need any work permit in order to work in Denmark. It should, however, be duly noted that these citizens would still need to obtain visas if such were required depending of their nationality and treaties regarding visas requirements. These exempted groups are: a foreign diplomats living in Denmark, and others with corresponding diplomatic privileges, and accompanying family members and helpers employed in the private household; b staff in foreign trains and motor vehicles in international traffic; c staff at Danish cargo ships in international traffic if the ships call at Danish ports a maximum of 25 times a year; d professional members of boards of directors if, within a calendar year, they stay no more than 40 days in Denmark to perform their duties as directors. The following persons are exempted from obtaining a work permit if their stays do not exceed three months as from their entry in Denmark: a researchers and lecturers who are invited to teach or carry out similar activities; b foreigners who intend to work as researchers or guest researchers, employed and invited by universities or companies in Denmark; c prospective graduate students participating in interview processes for PhD programmes in universities in Denmark; d artists, including musicians and artists who have great significance in major artistic areas; e representatives of foreign firms or companies without any branch offices in Denmark; f assemblers, consultants and instructors who assemble, install, inspect or repair machinery, equipment, computer programs, etc., or provide information about their use, if the companies that provide the equipment employ them; g people who are employed in the household of foreigners who are visiting Denmark for up to three months; and 3

4 h professional athletes and coaches who will be involved in a single major sporting event or participate in a trial at a Danish sports club. Finally, foreign doctors and dentists educated in countries outside the EU or EEA are able to obtain special residence and work permits in order to obtain Danish authorisation as doctors or dentists in Denmark. This authorisation is granted in order for the foreign doctor or dentist to improve their professional and linguistic skills, and eventually ensure residence in Denmark. II INTERNATIONAL TREATY OBLIGATIONS As previously mentioned, citizens of Norway, Iceland, Finland and Sweden have the right to reside and work in Denmark without obtaining any work or residence permits at first. This fundamental right of all Nordic citizens derives from an agreement under the Helsinki Treaty (or Nordic Agreement), which Denmark, Finland, Iceland, Norway and Sweden entered into on 22 May According to the Nordic Agreement, none of the citizens of the contracting countries shall require a work permit in respect of the nationals of any other contracting country. Furthermore, the Agreement states that the regulations concerning the labour market in each individual country may not place the nationals of the other contracting countries in a worse position than that of the country s own nationals. Also, as mentioned previously, Denmark is a member of the EU and is therefore subject to the EU rules set out in Articles 45 and 56 of the TFEU on the free movement of workers and services. According thereto, all EU citizens from other EU Member States, Switzerland or the EEA are free to reside in Denmark for up to three months. This period may be prolonged for up to six months provided that the citizens are, as just mentioned, seeking employment in Denmark, but it is a condition that the citizens actually seek employment during their stay. By the end of the period of either three or six months, the individual must obtain an EU residence document. This document is also called a registration certificate and is not issued for any specific duration. Instead, it remains valid for as long as the conditions under which it was issued continue to apply, for example, job seeking. Furthermore, special rules apply for Turkish nationals who work in Denmark as a result of the Agreement of 12 September 1963 on the establishment of an association between the EU and Turkey (the Association Agreement). According to this bilateral treaty, economically active Turkish nationals have special rights that allow them to continue living legally in Denmark, irrespective of whether the grounds for their original residence or work permits no longer apply. This also applies to the family members of Turkish nationals, irrespective of their nationality. The purpose of the Association Agreement is to strengthen economic and trade relations between Turkey and the EU, while gradually establishing the free movement of labour between the parties. 4

5 III THE YEAR IN REVIEW The key developments in Danish corporate immigration legislation in are the amendments to the Danish Aliens Act as part of the International Recruitment Reform. Another landmark was an award by an industrial arbitration tribunal for the most comprehensive underpayment of foreign workers so far in Danish history. Furthermore, a bill was adopted on 18 December 2014 by the Danish parliament, with the intention of making it easier for employers in Denmark to facilitate the residence and employment of highly qualified workers and professionals. More precisely, the bill amended the existing provisions on how highly qualified citizens from third countries are allowed to work in Denmark under a variety of schemes. Following these amendments, Danish companies and universities will hopefully find it easier to attract and employ highly qualified employees and students in order to compete with other countries. The bill was enacted on 1 January More precisely, the bill amended some of the existing schemes on how to obtain a work permit by: a improving the Fast Track scheme under which foreign citizens may now begin employment while applying for a residence and work permit (compared to the former Fast-Track scheme, foreign citizens had to await their permits before their entry into Denmark, causing delay for employers and the workers); b c d e abolishing the former Company Group scheme ; easing the existing Tax scheme for scientists and key employees, so employees with a monthly salary of 8,133 instead of the previous 9,489 can now also apply through this scheme; simplifying the existing Greencard scheme and adjusting the scheme in order to ensure that applicants under this scheme are actually highly qualified ; 7 and offering more attractive terms for scientists and key employees, who are now being allowed to leave Denmark during their employment in Denmark without the residence and work permit ceasing to be valid. The amendments also introduce new schemes on how to obtain a residence and work permit: These are: a a new scheme called Start-up Denmark, which is intended, on a trial basis, to attract foreign entrepreneurs to Denmark; and b residence permits for international students who complete Danish master s degrees or PhDs in Denmark, which allow them to work in Denmark for a period of two years or to start their own businesses after finishing university. 7 Some of the adjustments are, for example, shortening of the period of validity from three to two years and stricter language requirements. Furthermore, in order to prolong a residence and work permit obtained under the Greencard scheme, the applicant must document a yearly income corresponding to the minimum income of newly qualified graduates on the public and private labour markets. 5

6 Besides amendments to the Danish Aliens Act, other relevant amendments were made, including: a in general, all schemes under the Danish Aliens Act will now be subject to increased control by, for example, creating a connection between the Danish e-income and the tax authorities; furthermore, supervision of the area will have stronger focus on ensuring that companies employing foreign employees comply with Danish legislation and collective agreements; b simplification of the payment of fees, where the number of fees fall from nine to five; and c each foreign citizen will now be assigned an administrative personal security number, which should make it possible to, for example, create Danish bank accounts. Apart from the aforementioned specific amendments, the purpose of the International Recruit Reform is to ensure that highly qualified foreign workers and professionals stay in Denmark for long periods after their entry. The reform reflects the aim to offer more international schooling, including high schools for foreign citizens and, generally, to offer more foreigner-friendly guidance and create environments that are attractive to foreign workers and their families. The Danish immigration authorities, as well as Danish politicians, have also this year proven to be very keen on avoiding social dumping. 8 An attempt to avoid social dumping has been made by amending the Danish Act on Posting of Employees. According to this Act, all foreign companies situated outside of Denmark must register any employees that they have temporarily posted in Denmark in the Register of Foreign Service Providers. On 1 March 2015, a higher level of fines up to 100 per cent higher than previously was introduced. By this amendment, it is hoped that this level of fines, together with increased monitoring of the companies, will force them into complying with the Danish Aliens Act and also with Danish health and safety regulations. Finally, an industrial arbitration tribunal recently decided the biggest claim in Danish history relating to social dumping. The case concerned the payment of foreign employees of an Italian subcontractor that were performing work on the Metro construction in Copenhagen. The conditions of all the employees performing services on the Metro construction were regulated by a collective agreement opted into by **the general contractor** and the Danish labour union 3F. According to the collective agreement, the workers were supposed to receive a much higher salary than they had been paid, which is the typical situation with social dumping, and the issue was therefore brought before an industrial arbitration tribunal by 3F. The award shows that the Danish labour unions are also very keen to ensure that companies that are performing work or services in Denmark do not circumvent Danish 8 Social dumping is a phenomenon where foreign workers from, e.g., Poland accept working under terms and conditions that do not meet the minimum requirements according to any applicable Danish collective agreements or any Danish legislation, with the effect that Danish employees are being opted out of employment in favour of the foreign workers. 6

7 collective agreements by employing foreign workers under conditions much worse than those of Danish employees. A fine of 22 million kroner was imposed on the Italian company. IV EMPLOYER SPONSORSHIP i Work permits As earlier mentioned, it is necessary for citizens from third countries to obtain residence and work permits to live and work in Denmark. Obtaining these permits is regulated under different schemes, and depends primarily on the applicants qualifications. Work permit schemes The Positive List The Positive List is an official list issued and updated every year by the Danish Labour Market and Recruitment Agency (the Agency). The list specifies a number of professions currently in need of qualified employees. Therefore, aliens who are being offered employment within one of the professions on the Positive List are more likely to be granted residence and work permits. In order to apply under this scheme, however, an applicant must be able to submit a signed employment contract under Danish terms and conditions when applying for the work and residence permit. The list of professions includes professions within the fields of engineering, medicine, dentists, animal veterinarians, health care, IT, telecommunications, and building and construction, and also teachers in higher education institutions and other educators, and generally vocational professions, for example, lawyers. The minimum educational level for a position on the Positive List is a professional bachelor s degree, but may also be higher depending on the specific profession. If an alien is granted a residence and work permit through the Positive List scheme, such permit is valid for four years. The permit may, on application, be prolonged if the employment is continuing. Certain family members of the migrant may also enter and reside in Denmark as long as the issued residence permit is valid. The Greencard scheme According to the Greencard scheme, it is possible to obtain a residence and work permit for the purpose of searching for employment or to begin paid or unpaid employment in Denmark; the permit does not, however, allow the applicant to be self-employed. This permit is issued on an individual basis through a points system. In order to obtain such permit, the alien must obtain a total of at least 100 points. Points are assigned according to three criteria: education, language skills and adaptability. Points are assigned only for the highest education, which must be equivalent to at least a Danish bachelor s degree. The points are assigned in the following way: a a bachelor s degree 30 points; b a bachelor s degree followed by a one-year master s degree 50 points; c a master s degree 60 points; and 7

8 d a PhD 80 points. Thirty extra points are assigned if the education is within one of the professions listed on the Positive List scheme as mentioned above, and if the applicant generally meets the requirements set out by this scheme. Points for language skills are assigned if the applicant has passed, and has documentation to that effect, an official Danish test in Swedish, Norwegian, Danish, English or German. A maximum of 40 points may be assigned for language skills. Finally, points are assigned for any previous educational or employment links with the EU, EEA or Switzerland. A maximum of 40 points are assigned for such. The first permit issued through the Greencard scheme is valid for two years. The permit may be prolonged on application and subsequent permits are valid for three years. One of the recent amendments to this scheme is that the permit may be prolonged only if the applicant meets the income requirement. Accordingly, the applicant must, in the year before the application is submitted, have had an income equivalent to the current average starting salary for newly qualified graduates. In 2015, this figure is 319,725 kroner. The Pay Limit scheme Aliens who are offered employment with high salaries are automatically considered attractive workers and are therefore more likely to be granted a work and residence permits under this scheme. There are no special requirements for education, profession or any specific nature of the employment, but the alien must be able to prove the details of his or her employment by disclosing a contract with a yearly salary of at least 375,000 kroner. This criterion must be met each year the alien is residing in Denmark under this scheme. The Fast-track scheme The Fast-track scheme has, as previously mentioned, recently undergone some amendments in order to make it even easier for certified Danish companies to recruit aliens with special skills or qualifications. The purpose of the scheme is to allow certain companies to recruit highly qualified aliens without waiting for the processing of the application for residence and work permits by the Agency. an alien from China, for example, may now, under certain conditions, start working in Denmark immediately after filing an application for a residence and work permit. Previously, aliens had to await the issue of the permits, which led to delays for the companies recruiting as well as the aliens who were waiting to start their new employment. The scheme now also allows aliens to work alternately in Denmark and abroad for a period of more than six months without losing their permits. 8

9 The scheme may be applied if the alien is offered a job in a certified company 9 and the job meets one of the following four conditions: a a alien is employed according to the Pay Limit scheme as mentioned above; b the alien is employed as a scientist; c a alien not covered by the exemption rules is employed under employment conditions corresponding to Danish conditions, and if the stay in Denmark is only for a maximum of three months; d if the purpose of a highly qualified and professional alien is to be trained at a highly qualified level in a certified firm, or the alien is to instruct employees in the certified company at a highly qualified level. The certification is valid for four years and may be prolonged on application. A residence and work permit according to the Fast-track scheme is also valid for four years and may also be prolonged on application. If, however, the permit has been issued to an alien who is in Denmark for only three months, the permit may be applied for and issued only once every year. Other schemes Special schemes also apply concerning, for example, scientists, trainees and PhDs. Another scheme, similar to the Fast-track scheme, is the Red Carpet scheme. According to this scheme, companies that are often visited by aliens may apply for a prior approval of all visiting aliens, in which case aliens are exempted from applying for any residence permits. Application and appeal A alien may apply for a residence and work permit if he or she is residing legally in Denmark or outside Denmark, but if an alien is residing in Denmark with no legal permit or an earlier issued permit no longer is valid, the application for a new one will be dismissed. The application should be filed either at the representation in Denmark (the Agency) or at the national representation (e.g., a Danish consulate). If the application is rejected, and no other right of residence is permitted, the alien will be asked to leave Danish jurisdiction before a specified date. If the alien defies this injunction, he or she risks being deported and furthermore banned from entering the EU or EEA for at least two years. The Agency of Labour Market and Recruitment handles all applications. Appeals may be brought before the Immigration Appeals Board. 9 A certified company is a company that has been certified by the Agency of Labour Market and Recruitment. The certification is issued if the company meets a long list of criteria, for example, employment terms and conditions corresponding to Danish rules, more than 20 full-time employees, no outstanding issues with the Supervision of Labour and no earlier record of infringements of the Danish Aliens Act. 9

10 ii Labour market regulation Denmark Overall responsible authority for the Danish labour market lies with the Agency. The Agency cooperates nationally and internationally with the relevant authorities including the police, the tax authorities and the inspection and immigration authorities. Generally, the authorities are very focused on the validity and authenticity of any submitted documents and their contents when aliens apply for residence and work permits. Furthermore, the authorities annually perform several unannounced physical inspections of companies and education institutions in order to ensure that no aliens are working or studying without the necessary permits or infringing any conditions of already-issued permits. The authorities have also, through the use of linking and pooling data collected from the tax authorities and the electronic income system, for example, initiated electronic monitoring of employers as well as employees in order to prevent or reveal any attempts at social security fraud. This kind of monitoring is especially directed towards construction industries, horticultures, supermarkets and restaurants. iii Rights and duties of sponsored employees All citizens from outside the Nordic countries, EU, EEA and Switzerland of the age of 18 or above who apply for a residence permit in Denmark under the Danish Aliens Act will be asked to submit biometric data (facial image and fingerprints) when submitting the application. If such data is not submitted, the application will automatically be rejected. Denmark is well known for its welfare society, which includes several types of social benefits. Some of these benefits are conditional only upon actual employment in Denmark, for example, sickness benefits. Other social security benefits are conditional upon a specific period of employment. Alien workers working in Denmark and their accompanying families may, in some cases, be entitled to receive many of these social benefits depending largely on whether the worker is from the Nordic countries, the EU/ EEA or Switzerland, or third countries. Social security benefits include sickness benefits, family allowance, maternity benefits, financial aid, and pensions. Citizens from EU Member States are defined as migrant workers. As a general principle, no migrant worker in the EU may be treated differently from any other national in any EU Member State. Consequently, Polish citizens who are employed by a Danish employer are entitled to the same rights and social security benefits as any Danish employee, regardless of whether the Polish citizen performs work in Denmark or at home. Furthermore, an alien employed in Denmark may normally, when certain criteria are met, be accompanied by his or her family. The family will, however, have to apply for such family reunification and always be able to prove that they will not be a burden on Danish society. After five years of legal residence in Denmark, of which three years must have been as the employee of a Danish employer, the alien may apply for a permanent residence permit. 10

11 V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS In addition to the schemes described in Section III, supra, a new scheme called Start-up Denmark was introduced on 1 January According to this new scheme, foreign entrepreneurs with innovative business ideas and who can contribute to growth and new jobs in Denmark have the opportunity to obtain residence and work permits to establish and operate independent businesses in Denmark. Aliens who wish to set up the business in Denmark must seek a residence permit under the Start-up Denmark scheme. The scheme is also applicable to two aliens who wish to start a business together in Denmark. An expert panel set up by the Danish Business Authority must approve the business in general and the business plan. In order for the authorities to approve the business, the business must improve products or perform services with significance to the Danish market. This means that the set-up of retail shop, small trades, import or export businesses or any similar businesses will not be accepted since these types of business are already well represented on the market. Besides obtaining approval of the business plan, the alien will have to prove that he or she and any accompanying family will be no financial burden on Danish society during the first year of residence. Residence and work permits through the Start-up Denmark scheme are granted for a maximum of two years with the possibility of renewal for three years. VI OUTLOOK AND CONCLUSIONS Due to the recent amendments to the Danish Aliens Act, it is relatively certain that no further amendments will be enacted throughout It is, however, not yet possible to predict the outcome of the upcoming parliamentary election, the result of which may be crucial to the Danish policy on immigrants. If the right-wing liberal political parties win the majority of votes this year, we may very well experience more regulation and restriction on how to apply for residence and work permits in Denmark. At the same time, the current development of Danish society is and will in the future depend on having as many people on the labour market as possible due to the huge amount of elderly people and people on social security benefits. Therefore, it is very likely that Denmark will enhance its policy on also attracting employees and companies from outside the EU to reside in Denmark to a greater extent than previously seen. 11

12 JEPPE HØYER JØRGENSEN Lett Law Firm P/S Jeppe Høyer Jørgensen is a partner and head of employment at Lett Law Firm. He is a leading specialist in labour and employment law having extensive experience in advising national as well as multinational enterprises and groups on all business-related issues within labour and employment law, including major reorganisations and transactions. Moreover, he has wide experience in providing advice on issues and disputes relating to labour law. JULIE MØNSTED Lett Law Firm P/S Julie Mønsted is a senior associate at Lett Law Firm and provides advice to Danish and foreign clients on all aspects of labour and employment law. She assists with employment contracts and executive service agreements, staff policies, anti-competitive restrictions in employment relationships, incentive schemes, individual as well as collective redundancies, severance agreements, work and residence permits, secondments to and from enterprises and litigation on issues of employment law. Furthermore, Ms Mønsted has vast experience in advising on employee matters in connection with mergers and acquisitions. LYKKE ASMUSSEN Lett Law Firm P/S Lykke Asmussen is a junior associate at Lett Law Firm and provides advice to Danish and foreign clients on all aspects of labour law. She deals with employment contracts and staff policies, restrictions in employment relationships, work and residence permits and litigation on employment law issues. Furthermore, Ms Asmussen provides legal assistance within company and commercial law, including in particular mergers and acquisitions. LETT LAW FIRM P/S Rådhuspladsen Copenhagen V Denmark Tel: Fax: jej@lett.dk jum@lett.dk las@lett.dk 12